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Coalition Asks Biden to do More for FOIA, Transparency: FRINFORMSUM 2/25/2021

February 25, 2021

There’s Still Plenty President Biden Can Do to Boost FOIA In His First 100 Days 

President Biden did not follow in President Obama’s footsteps and issue a memorandum on the Freedom of Information Act on his first full day in office – but there is still plenty President Biden can do in his first 100 days to promote open government. To that end, the National Security Archive joined a coalition of good government groups in urging the Biden administration to take specific, meaningful steps to strengthen the Freedom of Information Act and reduce government secrecy. In a letter spearheaded by the ACLU and the Knight First Amendment Institute at Columbia University, the coalition asked the president to, among other things, work with Congress to increase funding for agencies’ record-keeping activities, direct agencies to proactively disclose specific categories of records likely to be of public interest (something agencies should already be doing), disclose key records of the previous administration, and complete the National FOIA portal that was mandated by the 2016 FOIA amendments. Read the entire letter here

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Justice Department’s Nazi-Hunting Program In the News – Read the Docs Behind It

The United States recently deported a 95-year-old former German concentration camp guard who had been living in Tennessee to Germany. The deportation was based on evidence found on a sunken ship that proved his role as a guard in the camps, and is likely one of the – if not the – last of the 70 Nazi-related deporatations the Justice Department has carried out since 1979.

The deportation is a near-final chapter on the U.S. government’s efforts to hunt (and occasionally protect) Nazis who immigrated to the States. The National Security Archive has actively sought Justice Department records on its Nazi-hunting activities for decades, most famously including a FOIA request for the DOJ’s Office of Speical Investigations 2006 report, “Striving for AccountabUity in the Aftermath of the Holocaust”. The DOJ initially redacted the document to such a self-defeating extent that former officials leaked the entire document to the New York Times instead of fulfilling our FOIA. Read more about the DOJ report here.

The Archive also obtained CIA’s secret documentary history of the U.S government’s relationship with General Reinhard Gehlen, the German army’s intelligence chief for the Eastern Front during World War II, which is available on our website. 

Lawsuit Saves Trump White House Records

The National Security Archive et. al. v. Donald J. Trump et. al. lawsuit, filed December 1, 2020 to prevent a possible bonfire of records in the Rose Garden, achieved a formal litigation hold on White House records that lasted all the way through the transition and Inauguration Day, the preservation of controversial WhatsApp messages, and a formal change in White House records policy.

The Archive worked with co-plaintiffs – the Society for Historians of American Foreign Relations (SHAFR) and the American Historical Association (AHA), as well as Citizens for Responsibility and Ethics in Washington (CREW) – to bring the case against President Trump, the Executive Office of the President, and the National Archives & Records Administration (NARA).

The lawsuit argued that Trump White House policy that only saved via screen shots the instant messages of government business – such as Jared Kushner’s negotiations with Saudi prince bin Salman – failed to capture the complete record that the law required. Plaintiffs pointed to repeated media accounts of White House failures to preserve records, including President Trump’s reported ripping up of documents in the Oval Office, former aide Steve Bannon’s use of disappearing instant messages to communicate with campaign embeds at the agencies, private email use by Ivanka Trump and other top officials, and the routine use of encrypted WhatsApp messages by Kushner and others.

Justice Department lawyers defending against the lawsuit have informed plaintiffs that White House records managers have now successfully deployed an archival tool in the WhatsApp software to capture full copies including links and attachments of the WhatsApp threads in Kushner’s account and other WhatsApp users at the White House.

Secrets of the ‘Havana Syndrome’: How Trump’s State Department and CIA Mishandled the Mysterious Maladies in Cuba

The Trump administration’s response to the mysterious health episodes experienced by intelligence and diplomatic personnel in Havana, Cuba, in late 2016 and 2017 was plagued by mismanagement, poor leadership, lack of coordination and a failure to follow established procedures, according to a formerly secret internal State Department review recently posted by the Archive. “The Department of State’s response to these incidents was characterized by a lack of senior leadership, ineffective communications, and systemic disorganization,” states the executive summary of the report, compiled by the Accountability Review Board (ARB) after a four-month investigation in 2018 that included interviews with CIA officers.

The report, stamped SECRET/NOFORN and obtained by the FOIA through the Archive, was provided to Tillerson’s successor, Mike Pompeo, on June 7, 2018. A full eighteen months after the unexplained afflictions were first reported, the ARB conceded that what happened in Havana remained shrouded in mystery. “The mechanism for the cause of the injuries is currently unknown. We do not know the motive behind these incidents, when they actually commenced, or who did it,” the report states. “We do know that USG, and Canadian diplomatic community members, were injured, but we do not know how. We do not know what happened, when it happened, who did it, or why.”

“The ARB report sheds considerable light on the ‘Havana Syndrome’ history,” said Peter Kornbluh, who directs the Archive’s Cuba Documentation Project. “But it does not solve the enduring mystery of what happened in Cuba.” The clues to resolving that mystery, he noted, are likely to be found in still-secret State Department, CIA, FBI, and Pentagon records, which remain immediately relevant as the Biden administration considers restoring Embassy staffing to full operations.

Able Archer War Scare “Potentially Disastrous”

“What might have happened that day in November 1983 if we had begun a precautionary generation of forces” against a Soviet alert in response to the Able Archer 83 NATO nuclear release exercise?  This is the question Lieutenant General Leonard H. Perroots asked in his January 1989 End of Tour Report Addendum published this week in the State Department’s Foreign Relations of the United States series, edited by Elizabeth C. Charles.

The FRUS volume, Foreign Relations of the United States, 1981–1988, Volume IV, Soviet Union, January 1983–March 1985, is a collection of more than 380 declassified records documenting the beginning of the end of the Cold War. The volume includes a trove of revelations about the 1983 War Scare, including the almost completely unredacted text of Lt. Gen. Perroots’s “parting shot before retirement”. Perroots served as Assistant Chief of Staff for Intelligence, US Air Forces Europe, during the 1983 Able Archer exercise, and rose to become the Director of the Defense Intelligence Agency. In January 1989, Perroots sent senior intelligence officials a classified “letter outlining his disquiet over the inadequate treatment of the Soviet war scare” before retiring from government service.

Perroots’s letter sparked a full, all-source investigation by the President’s Foreign Intelligence Advisory Board, culminating in its highly secret 1990 report “The Soviet ‘War Scare’”. The National Security Archive won declassification of the PFIAB report in 2015 through an interagency appeals panel decision after a 12-year struggle.  The detailed PFIAB report concluded that the U.S. “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during Able Archer, and commended Perroots for having avoided any escalation. 

In Brief

GAO FOIA Report Shows New B3s Cropping Up – the Government Accountability Office recently released a study on agencies’ application of the (b)(3) FOIA exemptions. (B)(3) is an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has closer to 260including one about watermelon production data. Perhaps the most interesting part of the report is appendix IV, which highlights the “19 additional Freedom of Information Act (b)(3) exemption statutes used by agencies in fiscal years 2017 through 2019 that were not cited in fiscal years 2010 through 2016”. Thanks to CATO’s Patrick Eddington for making us aware of this report.

FOIA Shows Weak Enforcement of Endangered Species Act, Biden Issues First National Security Directive, CDC Report on the “Havana Syndrome”, and More: FRINFORMSUM 2/4/2021

February 4, 2021

FOIA Spotlights Existential Trouble Posed to Florida Panther by Weak Enforcement of the Endangered Species Act 

The Fish and Wildlife Service – a component of the Department of the Interior – is sanctioning development plans in Collier County, Florida that seemingly contradict its most recent guidance (issued in 2008) on preserving the endangered Florida panther. A year-long investigation by The Intercept and Type Investigations, which relied on extensive Freedom of Information Act requests and interviews, shows that the agency – long criticized for its weak enforcement of the Endangered Species Act – is declining “to fully employ the law’s most powerful provisions” to protect the panther’s shrinking habitat. 

In this instance, the agency also appears to be courting conflict of interests with its dealings with the powerful Collier family companies advocating for the development of the panther’s habitat. The Intercept’s Jimmy Tobias writes, “Hundreds of public records and dozens of interviews show that as they work to get federal approval for a plan that would pave the way for their developments, the Collier County landowners have hired a phalanx of Washington lawyers and enjoyed access to top appointees at FWS as well as its parent agency, the U.S. Department of the Interior. The records and interviews paint a picture of a politicized FWS that is struggling to uphold the Endangered Species Act amid a growing global extinction crisis.” Tobias reports that in at least one instance, FWS “accepted money for staffing costs from a private entity — one called Eastern Collier Property Owners, or ECPO, and composed of companies owned by the Collier family and other local landowners — whose permit application the agency is currently evaluating.” 

Read the full investigation here.  

President Biden Issues First National Security Directive 

President Biden’s first National Security Directive designates COVID-19 as a top national security priority, tasking the Secretary of the Department of Health and Human Services and other relevant agency leaders with reporting to the president “recommendations on how the United States can:  (1) exercise leadership at the WHO and work with partners to lead and reinvigorate the international COVID-19 response; (2) participate in international efforts to advance global health, health security, and the prevention of future biological catastrophes; and (3) otherwise strengthen and reform the WHO.”

Presidential directives – sometimes classified and sometimes not – are not published in the Federal Register, and are not consistently publicly posted by successive White House administrations or regularly provided to Congress. 

Steve Aftergood notes that national security directives have had different names under different presidents; Obama’s national security orders were called Presidential Policy Directives, while Reagan’s were National Security Decision Directives. President George H.W. Bush also called his orders National Security Directives, which may prompt some confusion down the road.

Most interestingly, Aftergood reports that President Trump’s last such directive – concerning US government-funded research  – was his 33rd National Security Presidential Memorandum, meaning “that around one third of the national security directives (NSPMs) issued by President Trump have not been been publicly identified to date, either because they are classified or because they have otherwise been withheld from public release.”

75,000 Franchises Cash in on PPP Loans

2,217 McDonald’s franchises cashed in on the Paycheck Protection Program – and they were not the only franchises to do so. A Freedom of Information Act lawsuit filed by the Washington Post and four other news organizations has won the release of data from the Small Business Administration showing that 4,278 Subways and 2,445 Dunkin’s – and nearly 70,000 other franchises – joined the thousands of McDonald’s in taking advantage of the government’s emergency coronavirus small business loan. These franchises collected more than $15 billion of the program’s total $522 billion. 

The Post notes that “Because franchise owners operate somewhat independently of the chains with which they contract, they are eligible to receive PPP funds, money normally reserved for businesses employing fewer than 500 people. The SBA data on franchise affiliations, which the agency had not previously released, shows loans to franchises saved almost 2.5 million jobs, although experts say the SBA’s estimates of PPP job retention are badly inflated.”

Prior reporting on the FOIA release shows that more than half of the SBA’s funds went to five percent of the recipients, and that more than $850,000 of the COVID emergency loan program went to “Five prominent anti-vaccine organizations that have been known to spread misleading information” about COVID. 

CDC Report on the ‘Havana Syndrome’: Medical Mystery Remains Unresolved

The Centers for Disease Control and Prevention (CDC) conducted a two-year “epidemiologic investigation” of the mysterious medical incidents suffered by U.S. personnel in Cuba but could not determine the nature of the injuries nor the cause, according to an 18-page CDC report recently posted by the National Security Archive.  “The evaluations conducted thus far have not identified a mechanism of injury, process of exposure, effective treatment, or mitigating factor for the unexplained cluster of symptoms experienced by those stationed in Havana, Cuba,” concluded the CDC study.

Titled “Cuba Unexplained Events Investigation—Final Report,” the CDC study was completed more than a year ago. But its existence was revealed only after a more recent evaluation by the National Academy of Sciences which referenced the CDC report leaked to the press in December. The National Security Archive obtained the redacted CDC study through the Freedom of Information Act in January 2021. 

The National Security Archive posted the report and a detailed summary of its findings, and urged the Biden administration to lift the veil of secrecy surrounding the Havana Syndrome that has impeded recent investigations into the causation of this still unexplained phenomenon. The posting cites an unreported letter from six U.S. Senators to the Department of State expressing concern that “thus far, the Department has not been forthcoming with key details about the incidents involving the serious injuries incurred by several of those personnel” and demanding more transparency on the Havana Syndrome.

In Brief

  • The Department of Homeland Security’s National Terrorism Advisory System has issued a bulletin about the growing threat of “ideologically-motivated violent extremists” and domestic violent extremists (DVEs). The bulletin, which will stay in place until the end of April, appears to be the first DHS bulletin to warn of a domestic threat. The bulletin continues to use the DVE moniker, which rejects harsher and more specific language like “white supremacists”. The DHS’s first Homeland Threat Assessment, issued in October 2020, states that white supremacists are America’s biggest threat – but the final iteration replaced the term “white supremacists” with “domestic violent extremists” in several instances, lumping the specific threats posed by white supremacists in a larger bucket.
  • In a prime example of over-classification, over-eager State Department FOIA officers redacted former Secretary of State Mike Pompeo’s favorite pizza topping – citing an exemption intended to protect “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” NBC’s News reporter Josh Lederman tweeted the spurious redactions, showing that the FOIA office invoked Exemption 6 to avoid disclosing what kind of thin crust pizza he ate during a trip to Vatican City. 
  • The National Security Archive recently submitted comments to the Federal Register concerning NARA’s plan for digitizing public records. Our comments centered on: the inherent value of original paper records for a myriad of reasons, including but not limited to legal and evidentiary purposes; serious concerns about NARA’s ability to effectively oversee agency implementation of the guidance; the lack of funding for such a mandate; and the lack of guidance on the security of the actual tools for digitization, transmission, or storage. The comments can be found here. (The American Historical Association has also submitted excellent comments, which can be found on their website.)
  • Will there be a Trump Presidential Library? Should there be one? Author and former House Oversight Committee professional staffer Anthony Clark has an excellent article in Politico Magazine on the process of establishing a presidential library, and the time and dedicated effort it takes to get one off the ground (noting that Trump’s sustained attention to the issue is unlikely). And the Washington Post’s Philip Kennicott has a powerful read on why Trump should be denied a presidential library on principle: “The extent to which he and his administration destroyed records and communicated outside of federal systems is unknown, which is why he and his people should be cut out of the process of preserving those documents.” (Relatedly, the Promoting Accountability and Security in Transition (PAST) Act, introduced by Senator Chris Murphy (D-Conn.) and Congressman Mike Quigley (IL-05) “establishes consequences for former Presidents that destroy Presidential records, including restricting post-presidency salary and staff, prohibiting public funding for Presidential Library construction, and preventing presidential records from being entrusted to a Presidential Library or Museum regardless of whether public funds were used for construction.”)

Capitol Riot Documents, White House Visitor Logs are Back, Trump’s Presidential Library Website Launched, and Much More: FRINFORMSUM 1/22/2021

January 22, 2021

The Capitol Riot: Documents You Should Read (Part 1)

The Pentagon’s timeline of its response to the January 6, 2021 mob attack on the U.S. Capitol features multiple discrepancies with the public record, while the first federal indictment of mob participants details the specific legal charges that likely will be brought against others, according to the documents in the National Security Archive’s first “January 6 Sourcebook”.

The Sourcebook, subtitled “documents you should read,” includes:

  • the Dissent Channel message signed by more than 100 State Department employees denouncing the attack as undermining the U.S. promotion of democracy abroad (published by Josh Rogin of the Washington Post in his Twitter feed);
  • the earlier 2006 FBI report warning of white supremacists’ influence in far-right circles, released by the House Oversight Committee;
  • the Department of Homeland Security threat assessment from October 2020 warning that violent white supremacy was “the most persistent and lethal threat in the Homeland” (published by Lawfare);
  • the text of the speech by President Trump at the Ellipse just prior to the mob marching on the Capitol (published and annotated by the Washington Post);
  • the federal grand jury indictment of one of the mob members, Mark Leffingwell, citing five different sections of the U.S. Code violated by the mob. (First reported by Josh Gerstein of Politico.)

The January 6 Sourcebook publication marks the beginning of a systematic campaign by the Archive, a champion of the Freedom of Information Act, to use the FOIA to open the documentary record of what the government knew and when, and what the government did and didn’t do and when, about the mob attack on the Capitol. Archive staff have already drafted more than 75 specific, targeted FOIA requests to multiple federal agencies.

Biden Pledges to Open White House Visitor Logs

Biden spokesperson Jen Psaki has pledged the new administration will resume publication of Secret Service logs of White House visitors, an Obama transparency innovation that was canceled by Donald Trump.

The Obama White House posted some six million records of visits to the White House within 90 days of the visit, enabling journalists and citizens to track lobbyists and interest groups, and even determine the relative influence of, for instance, Google, versus the other tech companies.

The Trump White House initially promised on its website to resume publication, but the National Security Archive suspected that would not happen, given President Trump’s pattern of secrecy around his tax returns. Archive senior analyst Kate Doyle filed Freedom of Information Act requests with the Secret Service, part of the Department of Homeland Security, on early visits to Trump by Mexican officials at the White House and at Trump properties like Mar-a-Lago; and soon after, in April 2017, the entire visitor log portion of the White House website went dark.

The Archive filed suit in federal court in New York, where Doyle is based, in Doyle v. DHS, with pro bono representation from attorneys Anne Weismann (later of CREW), and Jameel Jaffer and Alex Abdo of the Knight First Amendment Center at Columbia University.

Will Trump’s mishandling of records leave a hole in history?  Undoubtedly Yes – Even as his Presidential Library Website is Launched.  

Former President Donald Trump was told to stop ripping up official documents – a move that violated the Presidential Records Act and forced White House records officers to spend hours taping them back together – but he wouldn’t. He also scolded officials for taking notes during meetings with Russian President Putin during the Mueller investigation, going so far as to confiscate the interpreter’s notes. Compounding this damage, members of his staff were also found to have used personal email and disappearing messaging apps. 

To add insult to injury, the delays formalizing the official transfer of power from the Trump administration to the incoming Biden administration impaired the move of presidential records from the Trump White House to the National Archives and Records Administration (NARA), which takes legal possession of the records as soon as the chief executive leaves office. NARA told the Associated Press, “Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody”.

Trump’s approach to records management and preservation was inexcusably cavalier. The Archive has filed several suits against his administration seeking redress on behalf of the public – including a 2017 suit filed with Citizens for Responsibility and Ethics in Washington (CREW) seeking judicial review of White House record keeping, as well as a 2019 suit filed together with CREW and Society for Historians of American Foreign Relations (SHAFR), against 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, especially those documenting foreign head-of-state conversations. 

The results of these suits were mixed – the first was ultimately lost and the second is ongoing – prompting the Archive, CREW, SHAFR, and the American Historical Association to file suit at the end of 2020 – this time against President Donald Trump in his official capacity, seeking to enforce the Presidential Records Act and prevent any destruction of records during the presidential transition. The court, however, refused to grant a temporary restraining order, citing assurances from government lawyers that White House staff had been instructed “to preserve all electronic communications in their original format until the suit was settled.”  Nonetheless, the DOJ committed to a litigation hold lasting through inauguration that resulted in three warnings from the White House Counsel’s office to White House staff, which put a stop to the practice of taking a screen shot of instant messages, preserving only the graphic content rather than a complete copy of the message.

Time will tell if the instructions were heeded. 

In the meantime, NARA has announced the launch of the Trump Presidential Library Website. Considering Trump’s disdain for recordkeeping, one hopes that Trump is funding the digitization of records that will appear on the site – just as Barack Obama did – rather than forcing taxpayers to do so.  

Fmr. Michigan Gov. Charged with Neglect in Flint Water Crisis: FOIA Plays Leading Role in Groundbreaking Charges

Former Michigan Governor Rick Snyder is being charged “with willful neglect of duty after an investigation of ruinous decisions that left Flint with lead-contaminated water and a regional outbreak of Legionnaires’ disease,” according to Politico. The misdemeanors are “punishable by up to a year in jail and a $1,000 fine.”

The Michigan state archivist said the charges against Snyder were groundbreaking, noting that no current or former governor in the state had been charged with crimes related to their time in office. 

FOIA’s role in the remarkable story must be noted: State-level FOIA releases in Michigan helped expose both the cost-driven decisions not to add corrosion controls to Flint water supply, and the cover-up to hide the grave mistake. The FOIA requests were so successful uncovering official malfeasance that they prompted Snyder – whose office was exempt from the FOIA – to release records on his own poor handling of the crisis in February 2016. The inadequacy of the governor’s response even spurred a bipartisan effort (ultimately unsuccessful) by Michigan lawmakers to introduce a series of legislation that would remove those exemptions. A deeper dive I performed into the role of FOIA in the Flint crisis can be found here

FOIA Shows PPP Loans Went to Anti-Vaxx Groups Spreading Misleading COVID Info

A FOIA lawsuit filed by the Washington Post and four other news organizations has won the release of Paycheck Protection Program data from the Small Business Administration. The release shows that more than $850,000 of the COVID emergency loan program went to “Five prominent anti-vaccine organizations that have been known to spread misleading information” about COVID. These organizations are the National Vaccine Information Center, Mercola Health Resources, the Informed Consent Action Network, the Children’s Health Defense and the Tenpenny Integrative Medical Center.

Prior reporting on the FOIA release shows that more than half of the SBA’s funds went to five percent of the recipients – “According to data on the government’s Paycheck Protection Program (PPP), about 600 mostly larger companies, including dozens of national chains, received the maximum amount allowed under the program of $10 million.” 

Reminder: Public Comments for NARA’s Digitization Rule Due 2/1/2021

NARA is seeking public comment on a proposed rule concerning the digitization of public records – namely, it is attempting “to amend our electronic records management regulations to add a subpart containing standards for digitizing permanent Federal records so that agencies may dispose of the original source records, where appropriate and in accordance with the Federal Records Act amendments of 2014.”

The proposed rule change poses serious concerns for historians, including:

  • How much oversight will NARA have of the digitization process to ensure its carried out properly and will include all relevant metadata?
    • NARA’s oversight of agency compliance with previous rules regarding email preservation raises concerns that NARA’s approach in this instance will be relatively hands-off, and that spot checks for individual agency compliance will be few and far between. Moreover, the impending deadline of the 2019 memo, coupled with this new rule change, raises the possibility that some agencies will choose the quickest and cheapest digitization process over long-term archival requirements.
  • What happens to physical records after they have been digitized? Will agencies have free reign to dispose of them?
  • Will there be backups of digitized files if they become corrupted?

Public comments are sought on or before February 1, 2021.

In Brief

  • Emails obtained through the Freedom of Information Act and shared with the Hill show Interior Department ethics officials concerned with the agency sharing a video on social media “touting President Trump’s conservation record”. Shared by Interior Secretary David Bernhardt, it immediately drew criticism for violating the Hatch Act. According to the FOIA release, Interior’s chief ethics official Heather Gottry wrote, “Given the proximity to the election, the overall tone and tenor of the video may be viewed by outside stakeholders as similar to campaign or other partisan political advocacy videos, and as a result may prompt questions or concerns to be raised with the U.S. Office of the Special Counsel”.
  • David Kris has an incredibly useful guide to the recently published “SIGINT Annex” released by the National Security Agency. Published in Lawfare, it is a primer for the “appendix to the manual of rules that governs intelligence collection by all elements of the Department of Defense, of which the NSA is one.” As Kris notes, “The SIGINT Annex is not easy reading, in part because it is designed for professional SIGINT operators and analysts. It is one of the main ways in which the NSA talks to itself about what is, and is not, authorized at every stage of the SIGINT life cycle. This includes collecting, processing, querying, retaining and disseminating SIGINT.”’
  • The National Security Council recently released a 2017 document called the “U.S. Strategic Framework for the Indo-Pacific.” The Post’s Josh Rogin notes that while the Trump administration was often criticized for not having a China strategy – it did have one. “The fundamental problem was that President Trump himself rarely followed it.”
  • The Black Vault – run by John Greenewald Jr. – can now boast that it is the host of an unprecedented number of CIA documents on UFOs. Greenewald won the release of nearly 3,000 pages of documents by filing a series of FOIA requests, and the CIA says the release represents the entirety of its FOIA collection. He also spent considerable time turning the documents into searchable PDFs – they can be found here.

New Year, New Transparency Trouble-Spots To Watch: FRINFORMSUM 1/7/2021

January 7, 2021
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Trump Appoints Loyalists – Including a Real Estate Lawyer – to PIDB

President Trump has recently appointed three new members to the Public Interest Declassification Board (PIDB) – an important presidential advisory committee “with the official mandate of promoting the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” When at full capacity, the board consists of nine members – five presidential appointees “and one each by the Speaker and Minority Leader of the House, and the Majority and Minority Leaders of the Senate. The PIDB’s founding statute requires the appointment of U.S. citizens who are preeminent in the fields of history, national security, foreign policy, intelligence policy, social science, law, or archival science.

The Trump appointments to the board should be noted – and in at least one instance, challenged.

  • Ezra Cohen Watnick, the current acting Under Secretary of Defense for Intelligence and Security (and Michael Flynn protege), is nominated to chair the board
  • Adam Telle, a long-time Republican committee staffer who has served as the majority clerk for the Subcommittee on Homeland Security – Committee on Appropriations, is nominated as a board member,
  • and Paul Noel Chretien, a real estate lawyer, is nominated as a board member. 

The three-year appointments, particularly the last, should be scrutinized. While the PIDB has not always lived up to its potential, its members have always been well-versed in national security and classification issues – and one has to ask how a real estate lawyer meets these mandatory requirements.

DNI Drops CUI Bombshell

The Director of National Intelligence John Ratcliffe is asking the White House to revoke Executive Order 13556 – a 2010 directive to establish “an open and uniform program for managing” controlled unclassified intelligence (CUI). (The EO was an attempt to wrangle the sometimes incompatible controls concerning the 100+ distinct categories of unclassified information that require distribution restrictions.) In his Dec. 4, 2020 letter – itself marked For Official Use Only – to National Security Adviser Robert O’Brien, Ratcliffe says “Given the complexity of the program, I believe that the full rescission of E.O. 13556 is the only viable alternative”.

Steve Aftergood reports that Ratcliffe’s jarring request comes just as agencies are required to post their CUI implementation plans, and ignores that the EO has been “fully embraced” by most other agencies, including the Department of Defense. Rather bizarrely, Ratcliffe’s memo “did not request an extension of time to achieve compliance, as he might ordinarily have done. Nor did he seek an exemption for intelligence agencies from the overall policy. Nor did he suggest another approach to address the persistent problem of identifying, sharing and protecting CUI whose broad contours have long been recognized, including by President Bush in 2008.”

Aftergood notes that the memo may be counterproductive, writing that, “DNI Ratcliffe’s ‘strong opposition’ to US Government policy on CUI together with his inability to formulate an acceptable alternate approach may, however, serve to elevate information policy as a priority for the Biden Administration.” 

Trump Admin Politicizes Unconfirmed Intel

In an extremely controversial move, the Trump administration has declassified uncorroborated intelligence alleging that the Chinese government is paying “non-state” actors in Afghanistan to kill American service personnel. (The intel does not specify if those non-state actors are the Taliban or another organized group.) IF the intelligence is true, it would mark a dramatic shift in the Chinese approach to the war in Afghanistan. The potential news also follows a July 2020 bombshell by the New York Times that Russia offered bounties to Afghan militias to kill American troops. 

The decision to release the unvetted intelligence is potentially dangerous and marks another instance of the Trump administration politicizing the declassification process. Late last year – both at the end of September and in early October – Director of National Intelligence John Ratcliffe selectively declassified information “that included sensitive intelligence about Russians discussing Hillary Clinton and her 2016 presidential campaign”. Critics have called the actions tantamount to spreading Russian disinformation for political purposes.

NARA Proposes Rule Change for Electronic Records – Public Comments Sought

The National Archives and Records Management (NARA) is seeking public comment on a proposed rule concerning the digitization of public records – namely, it is attempting  “to amend our electronic records management regulations to add a subpart containing standards for digitizing permanent Federal records so that agencies may dispose of the original source records, where appropriate and in accordance with the Federal Records Act amendments of 2014. We are also making a minor revision to our records schedule review provisions to establish a requirement for agencies to review, every five years, all records schedules that are ten years old and older, based on the date the National Archives and Records Administration (NARA) approved the schedule.”

NARA’s challenge of managing the tsunami of incoming digital records is immense, and the agency – whose budget and staff size have shrunk while its obligations have grown – should be applauded for its ongoing work to engage the public about its efforts and challenges. Yet this proposed rule change – which comes on the heels of 2019’s “Transition to Electronic Records” memorandum issued jointly with OMB and requiring all agencies to manage all their permanent records electronically by December 31, 2022 – poses serious concerns for historians, including:

  • How much oversight will NARA have of the digitization process to ensure its carried out properly and will include all relevant metadata?
    • NARA’s oversight of agency compliance with previous rules regarding email preservation raises concerns that NARA’s approach in this instance will be relatively hands-off, and that spot checks for individual agency compliance will be few and far between. Moreover, the impending deadline of the 2019 memo, coupled with this new rule change, raises the possibility that some agencies will choose the quickest and cheapest digitization process over long-term archival requirements.
  • What happens to physical records after they have been digitized? Will agencies have free reign to dispose of them?
  • Will there be backups of digitized files if they become corrupted?

Public comments are sought on or before February 1, 2021.

Intelligence and Vietnam (II): Return of The Top Secret 1969 State Department Study

The National Security Archive recently posted an update to a 2004 E-book featuring a landmark but still relatively little-known State Department study of the Vietnam War from 1969.  Commissioned by Thomas L. Hughes, the head of the Bureau of Intelligence and Research, it was a more modest account of the war than its more famous cousin, the Pentagon Papers. Yet in some ways it was more insightful and is considered essential to understanding the Department’s role in the conflict.

The Archive’s original posting presented a sometimes heavily redacted version of the document – all that was available at the time. However, after an Archive appeal under the Freedom of Information Act, the State Department released a much more complete version – most notably including an entire 275-page section consisting of specific references to INR’s contributions to various government reporting, including its own papers, CIA estimates, and other records.

In Brief

Don’t miss these two must-reads on what the Biden administration can and must do to bolster transparency and open government in 2021:

But the final piece will be advocacy. Accountability through FOIA requires the public, media, and watchdogs to keep fighting. For those of us who have paid close attention to the malfeasance and obstruction of the last four years, I don’t think that’s asking too much.

Both of these items draw on recommendations made in Accountability 2021, an outstanding  coalition report that the National Security Archive was proud to have helped with and which is full of Day 1 and sustained actions that the Biden administration can take to strengthen transparency and ethics across the federal government. 

Finally, be sure to read Democracy, history and the Presidential Records Act by the American Historical Association’s James Grossman and the Society for Historians of American Foreign Relations’s Richard Immerman. The authors rightly laud the efforts of Sen. Chris Murphy to introduce the Promoting Accountability and Security in Transition (PAST) Act, which seeks to close loopholes in the Presidential Records Act exploited by President Trump. The bill, which the National Security Archive enthusiastically endorses, would allow for – among other important improvements – increased judicial review of compliance with the PRA, and would “enable and promote histories that are thorough, accurate and reliable — and subject to appropriate revision as more records become available over time.”

New Digital National Security Archive Collection Publishes Thousands of Declassified “Snowflakes” from Rumsfeld’s Pentagon

December 18, 2020

The National Security Archive, with our partners at the scholarly publisher ProQuest, is publishing a new Digital National Security Archive (DNSA) collection of declassified “Snowflakes” memos authored by former Secretary of Defense Donald Rumsfeld. The 20,975-page collection, Donald Rumsfeld’s Snowflakes, Part I: The Pentagon and U.S. Foreign Policy, 2001-2003, provides researchers with an unparalleled, hour-by-hour account of the office of the Secretary of Defense during the first term of the George W. Bush Administration, from 2001 to 2003. 

Donald Rumsfeld’s Snowflakes, Part I complements a growing collection of Archive documents on the 9/11 era, Iraq, and Afghanistan. Part II, which covers later years of Rumsfeld’s tenure from 2004 to 2006, will be published in 2021.

The “Snowflakes” – the term given to the missives that became the controversial Secretary of Defense’s trademark form of daily communication – in this collection are mostly never-before-seen material that offers an unprecedented look into nearly everything that came across Rumsfeld’s desk. These items include communications and coordination with the highest levels of government, during a dynamic period of U.S. history that continues to influence global politics to this day. Where available, staff responses to Rumsfeld’s instructions and queries are also incorporated into the collection.

The wide variety of “Snowflakes” highlighted in this rich collection follow the U.S. response to the September 11 attacks and the ensuing global war on terror. Readers will find material that was circulated in the Pentagon in the days following 9/11, handwritten notes from the Guantanamo Bay Detention Camp, documents from the hunt for bin Laden, the Secretary’s communications with the CIA, records regarding legal controversies surrounding Guantanamo, all leading up to and through the invasion and occupation of Iraq in early 2003. A partial listing of topics covered by the declassified “Snowflakes” includes: 

  • the day-to-day operations of the Pentagon;
  • efforts to reorganize the Defense Department; 
  • modernization of the U.S. Armed Forces;
  • “jointness” or the move toward cross service cooperation in all aspects of the military; 
  • the military budgeting process and efforts to rein in defense spending; 
  • military planning, procurement, and expenditures;
  • the September 11, 2001 attacks;
  • the Global War on Terrorism;
  • the Afghanistan conflict;
  • justification for the Iraq War; the invasion, and reconstruction;
  • nuclear issues – weapons, proliferation, safety;
  • decision making on military wages, benefits, tours of duty, and veterans issues;
  • military intelligence; 
  • Defense Department relations with the CIA and Homeland Security; 
  • Rumsfeld’s relations with the State Department and National Security Council;
  • U.S. relations with NATO; 
  • U.S. military relations with Russia, former Soviet republics, and other countries;
  • Rumsfeld’s interactions with the news media, Congress, and the public;
  • Guantanamo detainees, interrogation, and torture;
  • concerns about the International Criminal Court and U.S. liability for war crimes;
  • the hunt for Osama bin Laden and other terrorists;
  • the Joint Strike Fighter program; and
  • the emergency landing of a U.S. EP-3 at Hainan Island in 2001.

Most of the documents in this collection have never been available to the public before. The first references to “Snowflakes” appeared in media accounts in early 2001 and the memos soon gained almost mythical status.  Occasional leaks to The Washington Post and other outlets gave readers glimpses into their contents but the first significant set of them did not appear until the publication of Rumsfeld’s memoir, Known and Unknown, in 2011. 

The documents in this collection were obtained by the National Security Archive after litigation with the Department of Defense under the Freedom of Information Act (with pro bono assistance from the law firm of Skadden Arps). An indication of their value can be found in the fact that the Archive’s collection featured prominently in the Washington Post’s massive exposé on the Afghanistan war, “The Afghanistan Papers.”

Previous related DNSA publications include U.S. Intelligence Community After 9/11, Targeting Iraq, Part 1: Planning, Invasion, and Occupation, 1997-2004 , Terrorism and U.S Policy, 1968-2002, and U.S. Intelligence on Weapons of Mass Destruction: From World War II to Iraq.

Learn more about the DNSA, and how to get a free trial, here.

Justice for the Jesuits Suspended at Home

November 16, 2020

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By Megan DeTura

As the thirty-first anniversary of the assassination of six Jesuit priests in El Salvador, their housemaid, and her daughter dawns, the search for justice has hit a roadblock. On Thursday, October 29, the Supreme Court of El Salvador suspended domestic investigations into the crime. In a decision issued by the Criminal Chamber, two magistrates reversed a lower court’s 2018 decision to reopen the case, ruling that the intellectual authors of the murders should not be investigated. The suspects included six military officials and former president Alfredo Cristiani. 

The ruling comes two months after the historic conviction of Col. Inocente Montano by the National Court of Spain for acts of state terrorism and murder – a verdict reached under the concept of Universal Jurisdiction. And while Montano will continue to serve his 133-year sentence, the prospect of similar verdicts closer to home has been thrown into doubt.  

In responses published after the decision, members of the Jesuit-run University of Central America (UCA) have expressed their outrage, calling it a “corrupt sentence,” one that “gravely offends the rule of law and human rights.” Yet the statements also note that the ruling does not close all avenues for justice, as the Jesuits and families of the victims are said to be considering potential next steps. 

One potential avenue has already been set in motion. On November 5, the Attorney General’s Office submitted an appeal to the Criminal Chamber, requesting the suspension be revoked. Should the request be denied, the Office has suggested it would file an appeal before the Constitutional Chamber, prompting an internal court battle between both chambers of the Supreme Court. Given the Constitutional Chamber’s superiority, a ruling in the Jesuits’ favor would annul the October 29th decision and allow the investigations to proceed. 

Nevertheless, the implications of the Criminal Chamber’s initial decision are likely to extend to other investigations. Leonor Arteaga, Director of the Due Process of Law Foundation’s (DPLF) program on Impunity and Grave Human Rights Violation, told the Archive, “Beyond the Jesuit case, the danger of this kind of decision is that it gives a message to lower courts that no case from the civil war, especially crimes against humanity or war crimes, should advance. Otherwise, the Supreme Court’s Criminal Chamber will annul the decision.” 

Examples of those pending investigations include several high-profile cases, such as the massacre at El Calabozo and the assassination of Archbishop Oscar Romero. Both cases were reopened after the 2016 overturning of El Salvador’s Amnesty Law and remain under the purview of the country’s Attorney General’s Office. Yet progress has stalled due to a lack of political and judicial will. 

In the case of El Mozote – where Salvadoran armed forces massacred nearly a thousand residents in 1981 – actions by both President Nayib Bukele and his Defense Minister René Merino Monroy have led to a standoff between the current administration and investigators. By physically barring the doors to military archives and claiming most of the documents were destroyed, the President and Defense Minister have repeatedly blocked access to declassified military information considered essential to the case. Such steps disregard an October 9th Constitutional Court decision requiring access to the records, and have prompted condemnation by the Interamerican Commission for Human Rights (CIDH). Survivors have also requested an investigation into both officials on charges of arbitrary acts, disobedience, and dereliction of duty.

Whether suspending, stalling, or actively obstructing investigations, the Bukele administration’s actions highlight the diminishing window for domestic proceedings. This has led investigators to look externally in their search for evidence. For instance, the presiding judge in the El Mozote case Jorge Guzmán Urquilla has requested support from Secretary of State Mike Pompeo, seeking the release of U.S. records. And while the State Department has yet to respond, the House of Representatives has since passed its own amendment requiring the release of Defense Department documents related to the case.  

Taken together with the Spanish Court’s verdict in the Jesuit Case, such bilateral cooperation demonstrates the continued importance of international human rights efforts. However, such efforts can only go so far. For as the families of the victims weigh next steps, an inability to prosecute at home would suggest a State that favors impunity over justice – one step further from accountability and toward amnesty.

President’s Daily Briefs Still in the Closet

September 30, 2020
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The other day I was working on a posting about John F. Kennedy’s decisions on the Vietnam war, and I had occasion to include one of the “President’s Daily Briefs” (PDBs), the super top secret personal reports the CIA and other intelligence agencies assemble every day for our senior executive. You may recall that in September 2015, when the CIA began to release this series of documents, they made a big splash of it, complete with a conference at the Lyndon Baines Johnson Library. The text of the PDB I selected for my subject was nearly complete, missing just two critical attributions for statements. Now, I had surveyed a number of the PDBs at the time of the release, arguing in a piece on my website, and here in UNREDACTED, that actual declassification of the PDBs had not been accomplished and was indeed in its infancy because crucial content in the reports was being routinely censored for spurious reasons. As a test, I took the PDB I selected and looked up that date in the relevant volume of the series Foreign Relations of the United States. There, in an editor’s note, were the very attributions that had been slashed out of the PDB. That volume of FRUS was published in 1991.

Two points. First, classified material selected to be included in the Foreign Relations series undergoes full review prior to its release, so in in its highly-touted 2015 re-release, the CIA was re-classifying material that had been in the public domain—in fact in print—for nearly a quarter of a century. Second, the CIA was taking another bite of the apple. Public spokespersons for a variety of Washington entities have been fond lately of claiming raising questions about anything amounts to re-litigating. Here CIA does that on a routine basis.

The Tet Declassified project inexplicably posts documents that have been previously released with far fewer redactions, such as this November 14, 1967 PDB.

My earlier complaint had been that CIA was taking credit for declassification work it had hardly done. Take, for example, the PDB of November 14, 1967, declassified on June 28, 2018—now half a century. Of its thirteen pages only a smattering—two—were released. All of it was on Vietnam. Every other subject was supposedly secret. This kind of tunnel vision is very common. Look at the PDBs from the 1967 Six Day War in the Middle East. In the five days from June 5 through June 9, the Middle East text is almost the only substance opened. That had been opened in 1993. In 2015, leaving the PDB in that state ought to have raised questions.

I thought it might be useful to take a fresh look at the PDBs from the perspective of these kinds of shenanigans. We have a basis for comparison because, before the PDBs were re-framed as being so secret, they were regularly subjects of declassification action. At least seventeen were in the public domain before the agency made its series releases. Ten of them the National Security Archive featured in an Electronic Briefing Book in 2004, when Dr. Larry Berman was suing for PDB release under the Freedom of Information Act. I took documents we had in hand and compared them with the series-release versions from 2015 and later. The results are uneven. The most common result is no difference between then and later. For example, the June 8, 1967 PDB was “declassified” in 1985, 1993, and 2015. The text is the same. The April 1, 1968 PDB? That was declassified in 1989 and 2015. The same. May 29, 1967? That was declassified in 2004 and in 2015 without change. Agency censors took credit for work done long ago, to which they added nothing.

February 15, 1962 President’s Intelligence Checklist (“PICL”)

Worse are the cases where work actually was done. Let’s start with the February 15, 1962 President’s Intelligence Checklist (as the PDB was known until 1964). It was declassified in January 1990 and again in July 2015. The censors gutted this document in 1990. An initial section on incidents in the air corridors to West Berlin was all cut. In 2015, when this text was restored, it was revealed to have been about several U.S. and French government and private aircraft that had been threatened, though not attacked. The rules for keeping things secret specify that information can be redacted if its release poses a demonstrable threat to the national security of the United States. By 1990 the Berlin Wall had fallen, East and West Germany were on the path to reunification, West Germany was negotiating a Soviet withdrawal from the East, and the whole Cold War had begun winding down. That details of aerial incidents in the foggy past of 1962 threatened national security in 1990 is plain silly. The reverse is also true. The PICKL (also abbreviated as PICL) that day had an item on Laos that recorded political maneuvering between Prime Minister Souvanna Phouma and military strongman Phoumi Nosavan, then a U.S. favorite. The 1990 version of the PICKL contained the full item. It was a routine iteration of some of the stunts common in Laos—Phoumi wanted to block Souvanna’s visit to the king. The 2015 the entire text regarding Phoumi is censored. How its release would damage the national security after 25 years already in public is the puzzle. Classification operates in a bizarre fashion.

There are further examples but its better to move on. The August 7, 1965 PDB (by then it was the PDB) was declassified in July 1993 and again on September 10, 2015. In the PDB one item reported the loss of a couple of Taiwanese patrol boats in the Formosa Straits, and that one of them had radioed of sinking several targets. In the 2015 redaction the part about the patrol boats sinking targets was cut. What was the national security damage there? That PDB also contained an item on the Dominican Republic that mentioned rebel extremists were attempting to recruit youths from the countryside. Censors in 2015 clipped out that whole text. National security damage? I’ll venture none.

The November 5, 1966 PDB declassified in 1992.

And the same PDB declassified again in 2015.

Here’s the PDB for November 5, 1966, which was declassified under a request filed at the Lyndon B. Johnson Library in 1992, and again on July 24, 1915. The 1992 release reported that communist China had carried out a 4th nuclear test, which apparently took Russia by surprise (the discussion of which the censors deleted). In 2015 the censors cut the entire item. The PRC nuclear test was a matter of public record since geologists routinely monitor for seismic shocks and radiological effects of nuclear blasts. That did not prevent the cut. The PDB also reported on German politics, where the chancellor was stepping down. In 1992 about ¾ of a line was cut, but in 2015 the cut expanded to six lines, including the part where CIA recorded who the chancellor favored as his successor. Damage to U.S. security? Nil.

The biggest howler? The same PDB had a pretty long item, most of a page in the original, about the British defense budget. This was a much-discussed subject in the 1960s—the British military position “East of Suez.” Whole books were written about it, along with journal articles, scholarly papers, think tank publications, talks at conferences, and more. A run on the pound sterling and on British gold was in the open, even being manipulated in U.S. foreign policy. Here the PDB speculates that before the British could finalize their budget they might have to have another “Great Debate” on the issue of Europe versus the Far East. The CIA credited U.S. and Australian political pressures as keeping the British engaged, and implied London had come to the end of its rope by saying it might “have to present the US with a basic decision on the issue.” In 2015 this entire passage was regarded as so sensitive it was made secret when the PDB was released. The markings (censors are supposed to note the reason something is secret) indicate foreign government information.

That may be, but something isn’t secret just because an Englishman told it to me. It had to be actually secret. That the British needed to have a debate? No secret there. That American and Australian encouragement kept British shoulders to the wheel? That was a bit of political analysis anyone could add. That the British would have to come to a decision and inform Washington? A conclusion that follows the postulates. Again, anyone could have come to it. You tell me what was the damage to U.S. national security.

Big declassification projects like the one for the PDBs soak up money, as well as the experts who work on declassification. When the projects spin wheels by not doing any new declassification they are wasting money and staff work. When they spend money to reclassify material that has already been released, especially on silly or spurious grounds, they go beyond waste. There are thousands of these PDBs, and so far only the ones for Presidents Kennedy through Ford are accessible. The CIA has long displayed a predilection for re-litigating secrecy and it’s doing that again here. Every single one of these (mostly) daily reports is going to have to be individually evaluated for classified information under the present system. Then there will be the appeals—another round. Then the re-request when the first attempt is denied. And so on. It’s time to change the system. Bulk declassification is the only possible solution.

The United States government is drowning in secret documents that cost money to protect. Funds for declassifying government records are limited. Every round of secrecy review costs money—and the daily protection of the secrets costs more. In the past few years, along with cuts in the budget for the National Archives and Records Administration, the overall situation has become quite worrisome. When a big thing like the PDB project merely opens up the document for more requests it is actually generating even more costs. The original secrets still have to be protected. Every reclassified piece of information adds to the price-tag. Space must be found for the gerrymandered copies of the documents. Money will have to be found for the re-reviews that may, someday, open up full documents. To repeat, bulk declassification is the solution.

Six Years On, Ayotzinapa Investigations Advance

September 29, 2020

Secretary of the Interior Olga Sánchez Cordero, President Andres Manuel López Obrador,
Undersecretary of Human Rights Alejandro Encinas Rodríguez, and María Martinez Zeferino,
mother of a disappeared student, display cloths embroidered by mothers of the 43.

National Security Archive Partners with Reveal from The Center for Investigative Reporting on FOIA Litigation

by Megan DeTura

As Mexico marks the sixth anniversary of the tragic disappearance of 43 teacher trainees from the Ayotzinapa School, the National Security Archive announces a new collaboration with reporters and lawyers at Reveal from The Center for Investigative Reporting to bring legal action against agencies of the US Government for their refusal to release information about the case.

The Mexican government shared the latest advances in its investigation into the notorious 2014 crime during a news conference held on Saturday, September 26, before families of the disappeared students. From the National Palace in Mexico City and via livestream, President Andres Manuel López Obrador joined members of Mexican Attorney General’s office, the Undersecretary for Human Rights Alejandro Encinas, and a representative of the International Group of Independent Experts (GIEI) in reconfirming their commitment to providing answers and accountability to the families of the 43.

Special Prosecutor Omar Gómez Trejo at the Sixth Anniversary news conference.

Essential aspects of what happened in the town of Iguala, Guerrero, on the night of September 26 and into the early morning of September 27, 2014 remain a mystery, including the students’ ultimate fate and current whereabouts. Yet through the efforts of the Commission for Truth and Justice and the Special Prosecutor’s unit dedicated to the Ayotzinapa case, the Lopez Obrador government has made headway toward uncovering new facts about the violent attacks six years ago.

Building on the most recent break in the investigation – the identification of the remains of a second student, Christian Alfonso Rodríguez Telumbre, announced in July – Saturday’s news conference shed more light onto the Peña Nieto government’s intentional mishandling of the case. The office of Special Prosecutor Omar Gómez Trejo has detained 80 individuals for their involvement in the case, including members of the Guerreros Unidos drug cartel and federal, state, and municipal police officers. And for the first time, Gómez announced arrest warrants for military personnel who, together with the police, are believed to be the “material and intellectual authors” of the disappearances.

The Attorney General’s team has also identified high-level officials implicated in the crime and cover-up, issuing arrest warrants for Tomas Zerón, former head of Mexico’s Criminal Investigation Agency (AIC), and some of his top aides. In July, a leaked video showed Zerón’s participation in the torture of a detainee, and recent financial probes have alleged Zerón’s involvement in the theft of millions of pesos to orchestrate the concealing and fabrication of evidence in the Ayotzinapa case. Zerón is currently believed to be in Israel and the Mexican Government has issued a formal request for his extradition.

Family members of the 43 disappeared students at the Sixth Anniversary news conference.

Recent progress in the Ayotzinapa investigation stands in contrast to the previous government’s gross mishandling of the case. And critical to that progress is the new information investigators have been able to obtain from a variety of sources. According to Alejandro Encinas, the Secretary of National Defense, Secretary of the Navy, and Mexico’s Financial Intelligence Unit – among other institutions and individual informants – have provided unprecedented cooperation and fresh evidence in the case.

If Mexican agencies have begun to provide critically needed information for the investigation, US agencies have not been so forthcoming. Instead, six years after the violent attacks, the United States Government has yet to release a single document of significance regarding the Ayotzinapa case, including pivotal records concerning the Guerreros Unidos cartel—the same gang implicated in the disappearances.

Beginning in 2015, the National Security Archive has sent a total of 140 Freedom of Information Act requests to eleven federal agencies. These requests cover the full scope of the crime and its aftermath, including the attacks, the botched “investigation” that followed, the cover-up, key institutions and individuals, and ongoing developments, with the most recent requests sent in September 2020. Of the 140, only six have resulted in the release of documents—records that have all been either heavily redacted or, in multiple occasions, nothing more than assorted news media articles.

Neither the CIA nor the FBI has released one document, electing instead to fully withhold all records and, in some instances, even refusing to confirm or deny the existence of documents in their possession. The Defense Intelligence Agency has dragged its feet in processing our requests: 13 are pending, some of them years after they were received. And despite its issuing of estimated dates of completion – a seeming lifeline for requests that will hopefully be processed by 2022 – the State Department still has yet to process one of our requests, including those whose estimated dates have come and gone.

Undersecretary of Human Rights Alejandro Encinas addresses the audience gathered at the National Palace.

In response to the government’s flagrant refusal to release information in the Ayotzinapa case, the National Security Archive has partnered with Reveal from The Center for Investigative Reporting to initiate legal action. We seek to challenge the government’s stonewalling and to expedite the processing of our long-delayed requests.

“Reveal from The Center for Investigative Reporting is pleased to be working on this litigation with the National Security Archive,” said it’s general counsel D. Victoria Baranetsky. “These publicly acknowledged records are an important part of history.”

As María Martínez Zeferino, mother of one of the disappeared students, reminded President López Obrador and investigators on Saturday, much more remains to be done to resolve the Ayotzinapa case. Speaking on behalf of the parents of the 43, Martínez stated, “You promised that you would help us to find our sons…we are glad to see that you are more human than those who came before you, but we ask that you push a little more. We wanted to arrive today on the 26th with something more. Understand us. Six years on and we still have nothing.”

Six years on, the National Security Archive continues to call for transparency in the Ayotzinapa case—not only from Mexico, but from the US as well. Together with Reveal, we heed the words of Ms. Martínez as we push a little more, and we ask that the United States government do the same.

Watch the news conference here: A seis años de la desaparición de 43 normalistas de Ayotzinapa

 

Declassification at the Pentagon II: More Silly Secrecy

August 31, 2020

A recent declassification decision by the Department of Defense illustrates the agency’s chronic inability to make wise decisions when reviewing classified historical records. In this decision, Pentagon reviewers denied almost the entirety of a Joint Chiefs of Staff memorandum from 1969 that had already been declassified for years. The same document was released in full in 2009 by the Interagency Security Classification Appeals Panel (ISCAP). Unbeknownst to me until recently, the same document that ISCAP had declassified was also in a file at the National Archives for which I requested declassification review in 2011. The file of documents concerned SEAGA (Selective Exercise of Air and Ground Alert), a Strategic Air Command nuclear alert program. In 2015, the National Archives informed me that the Defense Department had denied one of the SEAGA documents in its entirety, which turned out to be the one that ISCAP had declassified.

The DoDs recent release, nearly entirely redacted.

Not knowing what the document was but aware of its subject matter, I appealed the denial in 2015 and a few weeks ago the National Archives informed me that the Defense Department had approved partial release. The copy the Archives sent me was massively excised. When I saw it, I realized that it was the document that ISCAP had declassified in 2009. According to NARA’s letter, the Defense Department had ruled that release of the denied information would harm U.S. diplomatic relations and would also “reveal formally named or numbered U.S. military war plans that remain in effect.” Of course, that is irrelevant because as sensitive as this document was during the Cold War, ISCAP has decided over ten years ago that its release would not cause any harm to U.S. national security.

ISCAP’s 2009 release, entirely unredacted.

The document that ISCAP had fully released concerns the Selective Exercise of Air and Ground Alert, which was a program to raise alert levels of B-52 bombers in a defense emergency. Strategic Air Command and Pentagon planners created SEAGA after a B-52 bomber crashed in January 1968 on Greenland; its nuclear bombs were destroyed and spilled radioactive debris on the ice near Thule Air Base. The bomber had been on airborne alert, which had put nuclear-armed B-52s in the air twenty-four hours a day. With airborne alert terminated, SAC planners wanted contingency plans to raise air and ground alert levels for B-52s in crisis conditions.

If war broke out, the bombers could proceed to strike one of the target sets, probably urban-industrial, in the Single Integrated Operational Plan (SIOP), the U.S. nuclear war plan. In the event that the U.S. decided to activate SEAGA, the plans envisaged nuclear-armed flights over Canadian territory, which required Ottawa’s consent. The U.S. already had an agreement with Canada allowing nuclear overflights, but it would expire at the end of June 1969 and had to be renewed. It is the information on Canada that Defense Department officials believe would somehow harm U.S. relations with that country.

When I made the request for SEAGA documents, I was interested the role that SEAGA had played in a secret nuclear alert ordered by President Nixon in early October 1969 on which I was co-writing a book with Jeffrey Kimball. Following top-level orders for actions that would be “discernible to the Soviets but should not be threatening, the Pentagon implemented what was officially known as the Joint Chiefs of Staff Readiness Test. Accordingly, as one of a number of aerial, ground, and naval actions that U.S forces secretly took during October 1969, the Defense Department instructed the Strategic Air Command to implement GIANT LANCE, the SEAGA “Show of Force” option. For the first time since the Thule accident, nuclear-armed B-52s would be in the air, in this instance over northern Alaska. Lasting several days in late October 1969, the GIANT LANCE flights were one of the last steps of the secret readiness test. While Nixon hoped that this exercise of the “Madman Theory” would make the Soviets more amenable to helping with the Vietnam negotiations, that was not to be.

In 2015, when I appealed the denial, I suspected that the denied document was about SEAGA. To make my case that the document could be released without harm to national security, my appeal included a number of previously declassified documents on the subject; ironically, one of them was the very item that ISCAP had declassified in 2009. That, however, made absolutely no difference for the handling of the appeal. It’s difficult to know what happened: perhaps the Pentagon decision to keep the JCS memorandum largely classified was more or less a knee-jerk reaction and the ISCAP declassification was not even noticed. Perhaps the Pentagon reviewers believe that the ISCAP decision was mistaken or improper, but their attempt to reclassify is futile. As White House Chief of Staff H.R Haldeman said back in the days of Watergate, “once the toothpaste is out of the tube, it’s very tough to get it back in.”

This pointless decision demonstrates why the Defense Department needs to change the way that it uses its declassification authority. The Department needs competent reviewers whose first instinct is not to preserve secrecy and who can tell the difference between historical information that should be declassified and information that is still sensitive, and who are aware of what has already been declassified. The Pentagon needs centralized quality control to prevent poor decisions by Defense Department or Joint Staff reviewers from going forward. Moreover, when classified Defense Department records are held at the National Archives, that agency should have a substantive role in the declassification process. NARA reviewers could provide necessary quality control if they had the authority to stop a bad decision from going forward and to require a better outcome. Such a change would probably require an amendment to the executive order on classified information policy or, even better, a change in the law.

This incident is a perfect example of why ISCAP declassification decisions ought to have a far weightier impact than they do. Each ISCAP decision should provide the ground rules or parameters for future declassification decisions on a given topic. When it makes a decision, ISCAP should notify the agencies that basic information on topic X, e.g., SEAGA, is no longer classified. Agencies would be required to observe the decisions. While putting ISCAP in the role of a precedent setter has been discussed for years, it has become more and more necessary. To make that possible would also require a change in the executive order.