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FRINFORMSUM 2/27/2014: House Unanimously Passes FOIA Bill, DOJ will try to Inform Media Orgs if it Intends to Seize their Records in Leak Investigations, and More.

February 27, 2014
Not quite a nailbiter.

Not quite a nailbiter.

The bipartisan Freedom of Information Act Implementation Act (H.R.  1211), co-sponsored by Representatives Darrell Issa (R), Elijah Cummings (D), and Mike Quigley (D) unanimously passed the House earlier this week, leaving FOIA reforms in the hands of the Senate.  As written, the bill would: allow the Office of Government Information Services (OGIS) to submit reports and testimony directly to the Congress and the President rather than through the Office of Management and Budget and the Department of Justice’s Office of Information Policy; require each agency to update its FOIA regulations “not later than 180 days after the enactment of this Act;” codify the Obama administration’s “presumption of disclosure” language into law; advance an online, one-stop FOIA portal for requesters; and spur Inspectors General to monitor their agencies’ FOIA compliance. The bill is a good first step, and the Archive supports further strengthening the bill as it heads towards the Senate by: reforming the (b)(5) exemption; mandating a public interest test for (b)(3) statutory exemptions; and requiring that agencies post disclosed documents online to ensure that a “release to one is a release to all.”

The Pentagon released a proposal on Monday that would shift the Army to pre-WWII levels and see the Air Force “completely eliminate its A-10 attack airplane fleet” in an attempt to shift the military off the “war footing” it adopted after 9/11. Officials argue the budget cuts reflect both fiscal constraints and the political reality of a President “who pledged to end two costly and exhausting land wars.” The Department of Defense also announced that its counter-IED program, the Joint Improvised Explosive Device Defeat Organization (JIEDDO), will be scaled down to a third of its size over the next fiscal year (from 3,000 personnel to 1,000), with additional guidance that could bring the final personnel count to as low as 400.

NSA Inspector General, Dr. George Ellard, called Edward Snowden "manic in his thievery."  Photo: EPA

NSA Inspector General, Dr. George Ellard, called Edward Snowden “manic in his thievery.” Photo: EPA

The Inspector General for the National Security Agency (NSA), Dr. George Ellard, recently spoke publicly for the first time about Edward Snowden’s leaks. Ellard compared Snowden to Robert Hanssen, the FBI Supervisory Special Agent who sold secrets to the Soviets, saying that while Hanssen’s motives were clearly economic, “Snowden, in contrast, was manic in his thievery, which was exponentially larger than Hanssen’s. Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose. Snowden had no background in intelligence and is likely unaware of the significance of the documents he stole.”

After his NSA reform speech last month, President Obama tasked the Justice Department and the Office of the Director of National Intelligence to report possible ways to restructure the NSA’s bulk phone data collection program to him not later than March 28. A month ahead of schedule, and the agencies have already presented the President with four options. The first two, “storing the data with phone companies or another government agency,” are the most feasible, but private phone companies are resistant to such a shift, and House Intelligence Committee Chairman, Mike Rogers, recently said the panel does not support transferring the NSA data to private phone companies at this point. Another proposal is to turn the data over to the FBI or the Foreign Intelligence Surveillance Court, though the FBI is already “intertwined” with the surveillance program. The final option is, of course, doing away with the program altogether. Meanwhile, the NSA is asking to keep its phone records for longer than five years in case the agency needs to use them as evidence in the “slew of privacy lawsuits filed in the wake of the Edward Snowden’s leaks” about its surveillance practices.

Agron Hasbajrami was informed evidence in his terrorism case was obtained by the NSA's controversial bulk phone collection program. Image: DOJ

Agron Hasbajrami was informed evidence in his terrorism case was obtained under Section 702 of the FISA Amendments Act of 2008. Image: DOJ

The Justice Department recently informed a New York man, Agron Hasbajrami, sentenced last January to a 15-year prison term for supporting terrorism, that evidence in his case was obtained from surveillance conducted without an individual warrant. This makes Hasbajrami the third criminal defendant since last fall “to be told that his prosecution involved surveillance under Section 702 of the FISA Amendments Act of 2008.” Jamshid Muhtorov, the first criminal defendant who was charged under the provision, is already challenging the law.

The American Bar Association asked the NSA how it deals with attorney-client privilege in the wake of reports that the agency spied on an American law firm representing Indonesia in a trade dispute with the US. ABA President, James R. Silkenat, said that “[w]hether or not those press reports are accurate, given the principles of ‘minimization’ under the law, we request your support in preserving fundamental attorney-client privilege protections for all clients and ensuring that the proper policies and procedures are in place at NSA to prevent the erosion of this important legal principle.”

The Justice Department announced last week that it will revise its rules for obtaining news media records during leak investigations, promising it will inform news organizations “in most instances” beforehand if it intends to seize their records. The rule change comes after the Justice Department came under fire for secretly subpoenaing two months of Associated Press records, and now states that “members of the Justice Department may apply for a search warrant to obtain a journalist’s materials only when that person is a focus of a criminal probe for conduct outside the scope of ordinary news-gathering.”

Kennedy and Khrushchev in Vienna, 1961.

Kennedy and Khrushchev in Vienna, 1961.

Finally this week, Slate magazine analyzed the CIA’s 1961 “personality sketch” of Soviet leader Nikita Khrushchev, a 15-page document that was part of a dossier given to JFK by the CIA prior to Kennedy’s meeting the Khrushchev later that year in Vienna (and available online at the Kennedy Library’s digital archives). According to the CIA document, Khrushchev had been working on refining his public persona, including giving up “his public drinking bouts.” Despite the dossier, by Kennedy’s own admission the meeting was a disaster, and afterwards Khrushchev threatened to isolate West Berlin, eventually building the Berlin Wall later that year. Take a look at the National Security Archive’s posts ‘The Making of the Limited Test Ban Treaty, 1958-1963,’ and ‘Dubious Secrets of the Cuban Missile Crisis‘ for more on Kennedy’s relationship with the Soviet leader.

Happy FOIA-ing!

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