Senate Judiciary Committee Unanimously Passes FOIA Improvement Act, Senate Republicans Kill NSA Reform, and Much More: FRINFORMSUM 11/20/2014

Senator Leahy, chair of the Senate Judiciary Committee.

The Senate Judiciary Committee unanimously passed the FOIA Improvement Act’s Manager’s Amendment today, which maintains the most important reforms in the bill. While it strips a public interest balancing test provision specifically for Exemption Five, it includes a new statutory provision stating that agencies cannot use Exemption Five (or some other other exemptions) to “withhold information… merely because the agency can demonstrate, as a technical matter, that the records fall within the scope of an exemption” or “merely because disclosure of the information may be embarrassing to the agency or because of speculative or abstract concerns.” The bill will also preclude agencies from using Exemption Five to withhold documents over 25 years old. This means, for example, that the CIA couldn’t misapply Exemption Five and use it continue to hide a 30-year-old volume of the agency’s draft “official history” of the Bay of Pigs debacle.

The next step for the FOIA improvement Act is a vote on the Senate floor, followed by, hopefully, conference with the House. Given the House’s unanimous vote in favor of FOIA reform this May, the chances of conference seem high. The Archive congratulates Senate Judiciary chairman Sen. Leahy (D-VT), ranking member Sen. Grassley (R-IA), Sen. Cornyn (R-TX), and Reps. Issa (R-CA) and Cummings (D-MD), for working together in one of the last bastions of bipartisanship to push through this important FOIA legislation.

Senate Republicans killed a bill this week that would have curbed the National Security Agency’s (NSA) dragnet domestic surveillance practices in a 58-42 vote. Most believed that this vote would only delay the debate over surveillance practices until next June, when the legal basis for the NSA’s phone records collection program, a provision of the Patriot Act, expires. A little-known provision of the Patriot Act, however, has recently been discovered that would allow the program to continue indefinitely, even after the law expires. The provision, “obscure because it was recorded as a note accompanying Section 215″ and did not receive its own listing in the U.S. Code, would allow the president to directly petition the Foreign Intelligence Surveillance Court to keep the program alive.

The world’s most popular instant messaging service, WhatsApp, following similar announcements by Apple and Google, said it will begin encrypting all of its data, making it impossible for law enforcement to access the data even with a warrant. FBI director James Comey has repeatedly spoken out against Apple and Google for their encryption policies, saying the “post-Snowden pendulum has swung too far.”

The U.S. Marshals Service uses small Cessnas like this one to broadcast fake cell phone tower signals. Reuters photo.

The Department of Justice is refusing to either confirm or deny reports that the U.S. Marshals, the oldest federal law enforcement agency in the U.S., harvests “large amounts of data from Americans’ cellphones through devices mounted on airplanes in an effort to locate fugitives.” According to the Wall Street Journal, the Marshals run the program out of five large metropolitan areas through Cessna planes “equipped with two-foot-square devices — sometimes called ‘dirtboxes’ — that mimic cell towers and trick cellphones into reporting their unique registration information and general location.”

The government retracted arguments made last month in a 9^th Circuit Court of Appeals case concerning whether or not the gag orders that prevent recipients of the FBI’s National Security Letters (NSL) from discussing them constitute a violation of the First Amendment. Last month a DOJ lawyer said “that companies that receive national security letters — an administrative subpoena that can be issued by a field office supervisor — can comment on the ‘quality’ of the NSLs, including whether they think ‘the government is asking for too much.’” After the statements a Civil Division attorney called the lawyer’s comment “an inadvertent misstatement,” and the notion that a recipient can “publicly discuss the fact that it had received one or more NSLs and could discuss the quality of the specific NSL” received is “mistaken.”

Secrecy News’ Steven Aftergood recently reported that the government will revisit its “no fly” list procedures to make them more transparent and easier to challenge. The government’s announcement was made in connection with the Gulet Mohamed v. Eric Holder lawsuit. An August 5 Intercept article, which cites classified government documents on the National Counterterrorism Center’s databases, shows, among other things, “that 47,000 people — including 800 Americans — were on the government’s no-fly list, while an additional 16,000 — including 1,200 Americans — were on the ‘selectee’ list.”

Archivist William Burr recently received a heavily excised document in response to a decade-old MDR request for Pentagon records of former Defense Secretary Robert S. McNamara. The problem (aside from the decade-long wait)? The redacted document had previously been released twice nearly in its entirety, once in response to a 1990 FOIA request, and later in a 1996 State Department Foreign Relations of the United States publication.

The same page – page 5 – from the same document, released 3 different times. From Left to Right: 2014 National Archives release with Department of Defense redactions, 1996 Foreign Relations of the United States release, and circa 1990 Department of Defense Freedom of Information Act Release.

This week marked the 25th anniversary of El Salvador Jesuit murders by Salvadoran security forces. To mark the event, the Archive, which has spent the last 25 years collecting declassified U.S. documents on El Salvador, including the Jesuit murders, posted ten documents written by U.S. officials on the day of the murders and during the week that followed, showing the U.S.’s initial unwillingness to consider the Salvadoran military’s responsibility for the killings.

The Archive recently posted a collection of declassified documents on Project Sapphire, the first major success of the Nunn-Lugar program, to mark the project’s 20th anniversary. The posting includes an after-action report, analysis of HEU samples, Video of C-5 landings in Ust-Kamenogorsk, and photographs of uranium, and is part of a series on the history of the Nunn-Lugar program prepared by the Archive, building on the groundbreaking research in the Pulitzer-Prize-winning book, The Dead Hand: The Untold Story of the Cold War Arms Race and Its Dangerous Legacy.

Chief of Staff Donald Rumsfeld, President Gerald Ford and Deputy Chief of Staff Richard Cheney April 28, 1975.

In light of the Senate’s FOIA vote, today’s #tbt document pick is a 2004 Archive posting inspired by some significant legislative FOIA history. On this day in 1974 the House of Representatives voted overwhelmingly (371-31) to override President Gerald Ford’s veto of H.R. 12471, a bill that would significantly strengthen the Freedom Of Information Act, which Ford – encouraged by White House chief of staff, Donald Rumsfeld, Rumsfeld’s deputy, Dick Cheney, and Antonin Scalia, then the U.S. assistant attorney general for the Office of Legal Counsel – called “unconstitutional and unworkable.” The House, and later the Senate, disagreed, overriding the President’s veto. The amended FOIA incorporated judicial review of agency decisions, narrowing of some exemptions, restrictions on fees agencies could charge, and a time limit for agencies to comply with a request.

Happy FOIA-ing!