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FOIA Ombuds Office Remains Director-less, Why Transparency (Obviously) Isn’t Causing Washington Gridlock, DOJ Waits 8 Years to Disclose “Game Changing” Dox that Could Have Prevented Man’s Imprisonment, and Much More: FRINFORMSUM 1/15/2015

January 15, 2015

ogisThe Office of Government Information Services (OGIS) – the seven-person federal FOIA ombuds office tasked with monitoring government-wide FOIA compliance and policy –  still has not hired a new director to replace Miriam Nisbet, who retired at the end of November, or even posted a call for applicants to apply for the position.  It’s unclear why the crucial, yet understaffed and underfunded, office has yet to be given the green light to hire a director, considering the growing demand for its mediation and compliance services. Hopefully OGIS will soon be able to begin the hiring process, which will benefit FOIA requesters and processors everywhere.

Transparency, rather than divisive party politics, is becoming a scapegoat for Washington’s current gridlock. In a recent Washington Post op-ed that is drawn from a longer paper, the Bauman Foundation’s Gary D. Bass, the Project on Government Oversight’s Danielle Brian, and Brookings Institution visiting fellow Norm Eisen argue against these recent anti-transparency attacks and counter “Not only is there no relationship between openness and dysfunction, but more secrecy can only add to that dysfunction.” Francis Fukuyama responded to the opinion piece, arguing that transparency undercuts Congressional deliberation (although FOIA doesn’t’ apply to Congress), disclosure rules imposed on public officials deter qualified candidates from entering government (ignoring that there are numerous qualified people in government and that the officials who benefit the most from secrecy are arguably the least qualified and most corrupt), and that it makes deal-making in a decentralized system difficult (despite the fact that, if used correctly, FOIA exemption (b)5 would protect agencies making these kinds of deliberations and, again, that Congress is exempt from the FOIA). As Bass, Brian, and Eisen note, “While FOIA and other post-Watergate sunshine laws may need updating, their minor flaws are hardly causing government dysfunction or preventing government officials from having candid conversations. In 2013, there were 81,752 ‘deliberative’ moments — the most ever — where executive-branch information was withheld from reporters and the public under FOIA. If anything, the problem is that too many decisions are made in secret, not too few.”

Eric McDavid, recently released from prison after the DOJ very belatedly released dox showing he was likely entrapped.  Photograph: Jose Luis Villegas/AP

Eric McDavid, recently released from prison after the DOJ very belatedly released dox showing he was likely entrapped. Photograph: Jose Luis Villegas/AP

The Department of Justice (DOJ) has belatedly released thousands of pages of “game-changing” documents (in response to a FOIA request) showing an FBI informant likely entrapped the leader of an eco-terrorist cell, leading to a 19-year prison sentence. The case centers on FBI informant “Anna,” “eco-terrorist cell” leader Eric McDavid, and the ten-day 2007 trial that saw McDavid sentenced to 19 years in federal prison. During the trial federal prosecutors portrayed “Anna” as a neutral intelligence gatherer, but heavily redacted documents obtained through the FOIA show she likely entrapped McDavid by “encouraging him to behave conspiratorially in the hope of romantic fulfillment.” Federal judge Morrison England said of the DOJ’s late disclosures, “I’ve never heard or seen anything like this,” and that McDavid’s treatment was “not fair.” McDavid was released last week after serving nine years of his sentence. The DOJ insists the withholding of the crucial documents was an “inadvertent” mistake, telling the to the New York Times last week that “the documents were produced to the defendant promptly after their discovery.”

A New York Times (NYT) FOIA lawsuit has won the partial release of a 231-page DOJ Inspector General (IG) study on the FBI’s creeping surveillance activities under the FISA Amendments Act of 2008. The heavily redacted report notes that in 2008 the bureau “assumed the power to review email accounts the N.S.A. wanted to collect through the ‘Prism’ system,” and by 2009 the FBI was “retaining copies of unprocessed communications gathered without a warrant to analyze for its own purposes.” The report further found that by 2012 the FBI was nominating foreign email accounts and phone numbers, including those that would be obtained through the NSA’s “upstream” system, for collection.

Petraeus and Broadwell in 2011. Photo: International Security Assistance Force.

Petraeus and Broadwell in 2011. Photo: International Security Assistance Force.

Last week the FBI and DOJ prosecutors recommended bringing felony charges against former CIA head Gen. David Petraeus for giving classified information to his mistress and biographer Paula Broadwell. It is now up to Attorney General Eric Holder, who “has led a crackdown on government officials who reveal secrets to journalists,” to decide whether or not he will seek an indictment of the retired four-star general. The Freedom of the Press Foundation’s Trevor Timm noted that while initial reporting did not indicate as such, the prosecution – should it occur – would likely be under the Espionage Act of 1917, which does not require that a crime be committed (or intended) for conviction. Therefore, while by all accounts Petraues’ leaks did not harm national security, he could still be charged. Timm notes “no one should be charged with espionage when they didn’t commit espionage, but if prosecutors are going to use the heinous Espionage Act to charge leakers, they should at least do it fairly and across the board—no matter one’s rank in the military or position in the government.”

The long-delayed leaks trial has begun for former CIA officer Jeffrey Sterling, accused of disclosing classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to NYT reporter James Risen for a chapter in his 2006 book, State of War. Sterling was charged in 2010, but debates over whether or not the DOJ would force Risen to testify held up the proceedings. The DOJ dropped its subpoena for Mr. Risen’s testimony on Monday.

A recent quarterly progress report on the government-wide insider threat program found the program is well behind schedule. The January 2017 target for achieving the program’s Initial Operating Capability was determined to be “at risk,” and the target date for the program’s Full Operating Capability has yet to be set.

The Director of National Intelligence recently released its congressionally mandated IG report on overclassification of information within the intelligence community. Matthew Aid noted the IG, which found no instances of overclassification, “apparently did not look very hard,” saying the inspector general should have talked to Steven Aftergood of the Federation of American Scientists and the National Security Archive for “dozens of instances where the ODNI and its subordinate agencies have knowingly and willfully over-classified information.”

The DOJ submitted a motion in the U.S. District Court for the Northern District of California on Friday seeking to have most of Twitter’s lawsuit, which alleges the DOJ “violated [Twitter’s] First Amendment rights when it restricted [Twitter’s] ability to reveal information about national security requests for user data” Twitter receives, thrown out. Last January the DOJ negotiated more relaxed limits for companies reporting on the number of national security requests they receive with five firms – not including Twitter. Twitter found that the new limits continued to be too strict, and ultimately sued “after the FBI barred it from releasing a transparency report that the bureau said contained classified information that was inconsistent with the department guidelines released last January.”

Donald N. Wilber, an archeologist and authority on ancient Persia, served as lead U.S. planner of TPAJAX (along with British SIS officer Norman Darbyshire).

Donald N. Wilber, an archeologist and authority on ancient Persia, served as lead U.S. planner of TPAJAX (along with British SIS officer Norman Darbyshire).

Today’s #tbt document pick is one first disclosed by NYT reporter James Risen – the 1954 CIA history of operation TPAJAX to overthrow Iranian Prime Minister Mohammad Mossadeq. The 200-page report, disclosed in 2000, is written by one of the operation’s chief planners, Donald Wilber, and based on agency cables and Wilber’s interviews with other agents involved in the operation. Considering the Department of State just blocked the release of the already delayed Foreign Relations of the United States volume of U.S. covert action in Iran in the 1950s, maybe it’s time for Risen to produce another leak?

Happy FOIA-ing!

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