New SSCI Chair Tries to Hide CIA Torture Report from FOIA, New Non-Binding DOJ Guidelines for Dealing with Journalists, and Much More: FRINFORMSUM 1/22/2015

Sen. Burr (R-NC), pictured here on November 4, 2014, in Charlotte, NC, wants all copies of the CIA Torture Report returned to his committee. Photo Credit: Davis Turner/Getty Images

Sen. Richard Burr (R-NC), the new head of the Senate Intelligence Committee (SSCI) and staunch critic of the Committee’s classified CIA Torture Report compiled under Sen. Dianne Feinstein (D-CA), recently sent a letter to the White House requesting that all federal agencies and departments in possession of the report return it to the Committee immediately. Burr’s letter argues the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.” Burr also requested that the Senate’s official referee “determine whether it was appropriate for the full, classified Intelligence Committee report to ever leave the Senate without the GOP being notified.”

Many believe Sen. Burr’s unprecedented move is made with an eye towards future FOIA requests seeking the report’s declassification, as Congress is not subject to the Freedom of Information Act. Steven Aftergood notes that if Burr’s move is an attempt to hide documents outside the bounds of FOIA, however, it “seems short-sighted and probably futile, given that all of the evidentiary material on which the report is based originated in the executive branch anyway. Moreover, the Committee report has spawned an entire literature of agency evaluations and responses (such as the so-called Panetta Review). That literature belongs to the agencies, and sooner or later it should be subject to public disclosure regardless of the fate of the SSCI report.” It’s worth noting yesterday’s New York Times reported that each document used for the Panetta Review, the internal 2009 CIA review finding the value of torturing detainees had been inflated, “is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” and is emblematic of agencies realizing the ease of hiding FOIA-able documents under the expansive and oft-abused FOIA exemption b(5). Of course, pursuant to Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 1987), “particular factual” material cannot be withheld by an agency by merely stating that the material is in a draft document.

CIA Inspector General David Buckley’s report finding five agency officials improperly monitored SSCI staff working on the Torture Report is now available. While Buckley’s report admonished the involved officials, the agency recently announced that it will not punish said officials. The news was issued in a report by a CIA panel hand-picked by  Director John Brennan, and “cleared” the officials of any “wrongdoing,” concluding that the officials had acted reasonably in the face of a potential security breach. It was simultaneously announced that Buckley will be resigning at the end of the month.

New non-binding guidelines will require AG approval for investigations into journalists who used classified material or confidential sources. Photo Credit: Evan Vucci/AP

Outgoing Attorney General Eric Holder, who has overseen the Justice Department’s crackdown on government officials who reveal secrets to journalists, recently announced new non-binding DOJ procedures intended to tighten “guidelines for the use of subpoenas, court orders and search warrants to obtain information and records of journalists.” Under the new guidelines, prosecutors will require “authorization from the attorney general if they want to seek information from journalists who used classified material or confidential sources in the course of their newsgathering.” The guidelines were announced shortly after the DOJ dropped its subpoena for New York Times reporter James Risen’s testimony in a leaks trial.

Last week the Justice Department disclosed in court documents that the Drug Enforcement Agency maintained a database of Americans’ outbound overseas call records, even if the callers were not involved in any criminal activity, for over a decade. The database was apparently available to other law enforcement agencies working on certain cases, and was only suspended in 2013. Sen. Patrick Leahy (D-VT) urged AG Holder not to restore the program in a letter last March, saying, “I am deeply concerned about this suspicionless intrusion into Americans’ privacy in any context, but it is particularly troubling when done for routine criminal investigations.” The Senator later praised Holder’s decision to kill the program.

A weak checks-and-balance system at the FBI’s prestigious D.C. bureau enabled one agent to tamper with evidence collected from his cases and repeatedly steal heroin for his personal use, resulting in the release of men previously convicted of drug crimes. This story comes on the heels of an internal FBI investigation finding “agents in every region of the country have mishandled, mislabeled and lost evidence” and found errors “with nearly half the pieces of evidence it reviewed.”

The Guardian recently obtained a Pentagon Inspector General report through the FOIA that accuses the Air Force of possibly wasting $8.8 billion on unnecessary Reaper drones. A summary of the IG report was released in September, arguing USAF “officials did not receive appropriate approval for an increase in quantity. The Air Force also failed to perform a proper analysis to justify the amount needed.” The scathing summary prompted to Air Force to issue a rare rebuttal of the DOD IG report, and post a response on its website arguing the IG report relied on year-old data. Earlier this month, Customs and Border Protection’s (CBP) drone fleet also received criticism from a Department of Homeland Security (DHS) Inspector General audit that found “little or no evidence” CBP’s current fleet – that surveys a mere “100 miles of the Arizona border and 70 miles of the Texas border” – warrants the agency’s planned $443 million expansion of the program.

NDC release rates (right chart) are slowed in large part by equity re-reviews.

The declassification watchdogs at the Public Interest Declassification Board call for an end to both the wasteful referral and consultation re-review process and the ineffective pass/fail declassification shortcut at the National Declassification Center (NDC) in their latest report, Setting Priorities: An Essential Step in Transforming Declassification. Archivist and FOIA Advisory Committee member Nate Jones takes an in-depth look at these recommendations, as well as the report’s most controversial recommendation that “Topic based declassification should be the normal process rather than the exception,” in his latest for Unredacted. Jones urges that instead of pursuing the targeted declassification of disparate topics, the NDC pursue “the targeted (and thorough) declassification of key series of records while continuing bulk declassification of all records in NARA’s possession.”

Vice News reporter Jason Leopold recently lambasted U.S. Central Command (CENTCOM) for using the increasingly misapplied FOIA Exemption b(5) to deny huge swaths of documents regarding  a “‘precision strike program’ to provide Yemeni military with equipment so it could operate its own targeted killings of suspected terrorists.” Among the documents denied under the b(5) exemption – used so often President Obama’s adviser John Podesta has called it the “withhold it because you want to” exemption – is a two-page February 3, 2014, CENTCOM memo obtained and posted in full online by Buzzfeed reporter Aram Roston nearly a year ago.

Withheld under exemption (b)5.

This week’s #tbt document pick is chosen with the growing misapplication of exemption b(5) in mind, and was obtained during the Archive’s Knight Open Government Survey, “Glass Half Full”. The document was disclosed by the Department of the Interior (DOI), and is the DOI’s (and likely other agencies) cheat sheet for determining if a document can be released to a FOIA requester as a “discretionary release,” a situation most applicable to documents withheld under b(5).

Happy FOIA-ing!