FOIA Bills Reintroduced in Both House and Senate, Modest Changes to Surveillance Practices Announced, and Much More: FRINFORMSUM 2/5/2015

Here we go again…

Representatives Darrell Issa (R-Ca) and Elijah Cummings (D-Md), and Senators Patrick Leahy (D-Vt) and John Cornyn (R-Tx), are renewing a bipartisan, bicameral effort to strengthen the FOIA after similar legislation died by the end of last year’s congressional session. As the Archive’s Nate Jones points out, both bills contain improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, strengthening the FOIA ombuds office, and would help get more documents to more requesters more quickly. Senate Judiciary Chairman Chuck Grassley (R-Ia) has already placed the Senate bill on this week’s committee calendar, and transparency advocates are both hopeful and heartened by the bills sponsors’ “continued championship of openness and accountability in government.”

The Obama administration recently announced modest changes to the Intelligence Community’s (IC) surveillance practices in an attempt to promote privacy and civil liberties. The changes – announced a year after the President said he would end the bulk surveillance programs revealed by National Security Agency (NSA) contractor Edward Snowden – include placing a three year time limit on the gag orders contained in the FBI’s national security letters (NSL) – whose lack of judicial oversight has been a longstanding concern for privacy advocates, new restrictions for warrantless searches conducted under Section 702 of the Foreign Intelligence Surveillance Act, and new mandates that evidence collected under 702 cannot be used as evidence in court – unless the attorney general deems the case has “national security implications or [for] certain other serious crimes.”

While many privacy advocates note the changes are in the right direction, some argue the stipulations’ vague wording provides little concrete improvement to current collection methods. Gregory Nojeim, senior counsel for the Center for Democracy & Technology, points out the NSL concessions still do “not meet the constitutional standard” and that the FBI should be required to prove a likelihood of harm exists in court before issuing an NSL. The Brennan Center for Justice’s Liberty and National Security Program director, Elizabeth Goitein, notes, “we still have massive amounts of Americans’ communications being collected under these foreign intelligence authorities and searched without a warrant.” Senator Ron Wyden (D-Or) echoed these concerns saying, “When it comes to reforming intelligence programs and protecting Americans’ privacy, there is much, much more work to be done.”

One distinctly notable achievement in the announcement was extending the same privacy rights to foreigners as Americans by banning intelligence agencies “from disseminating information about foreigners to other countries’ intelligence agencies without considering their privacy.” Privacy and Civil Liberties Oversight Board (PCLOB) chairman David Medine noted the unprecedented nature of this decision, saying “There’s no country on the planet that has gone this far to improve the treatment of non-citizens in government surveillance. That alone is remarkable after the events of the last year and half because in most countries non-citizens are fair game.”

Director of National Intelligence General Counsel Robert S. Litt recently said the agency had no backup plan if 215 is not reauthorized.

Obama’s announcement of tweaks to IC collection practices comes months before Section 215 of the Patriot Act, which the NSA cites to justify its data collection, is set to expire. Yet Robert Litt, the Office of the Director of National Intelligence general counsel, said this week that there is “no backup plan if Congress didn’t reauthorize [Section 215] allowing the bulk collection of telephone records by its June expiration date.” Despite the lack of an alternative, a recent PCLOB report argues it is “now well past time for the administration to have developed alternative procedures and alternative relationships with the telephone companies to stop the daily flow of data to the government.”

The NSA’s own director of privacy and civil liberties, Rebecca Richards, recently appeared on The Cyberlaw Podcast cautiously suggesting that whatever the fate of Section 215 is, the NSA should stop relying on secret or “cute legal interpretations” of the law to carry out its surveillance. While it’s notable a NSA official has gone on the record insinuating the agency’s practices are inconsistent with privacy rights, she was criticized for failing to address the agency’s breaking of “privacy rules or overstep[ing] its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.” Senator Chuck Grassley (R-Ia), for example, is still waiting for the agency to explain how it handled employees who abused their surveillance capabilities by spying on their lovers’ phone records.

Information regarding the building of Afghan security forces – a $65 billion endeavor – has been available for the last six years, but a recent query from the command’s inspector general revealed the sudden classification of much of this information – allegedly because the information posed a grave security risk if it remained available. After receiving intense criticism over its classification of previously available information – including how much money the US spent feeding and teaching Afghan forces to read and write –, the Afghanistan military command has backtracked and is now declassifying some – about 90% – of the material.

The ACLU recently filed an emergency motion to stop Sen. Burr (R-NC) from repossessing all copies of the CIA Torture Report. returned to his committee.(Photo by Davis Turner/Getty Images)

The ACLU recently filed an emergency motion to block Sen. Richard Burr’s (R-NC) efforts to repossess copies of the Senate Intelligence Committee’s report on the CIA’s torture program. Last month Burr, in a move many believe is an attempt to prevent the report from being released in response to future FOIA requests, 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, arguing the report is “a committee sensitive document” and “should not be entered into any executive branch system of records.”

The Pentagon recently released emails top brass exchanged with Tampa socialite Jill Kelly in response to a FOIA request. Kelly’s relationship with General David Petraeus sparked jealousy in Petreaus’ biographer and mistress, Paula Broadwell, who derided Kelly in anonymous emails to military officials. The anonymous emails spawned an FBI investigation, which revealed the Petraeus-Broadwell affair, and ultimately led to Petraeus’ forced retirement. Last month the the FBI and DOJ prosecutors recommended bringing felony charges against Petraeus for giving classified information to Broadwell over the course of their relationship, forcing Attorney General Eric Holder to decide whether or not he will seek an indictment of the retired four-star general.

National Declassification Center (NDC) director Sheryl Shenberger recently posted an updated list of prioritized NDC projects for final declassification. While the status report on the records researchers chose from a select list to jump to the head of the queue for final processing is useful, it would be more useful if the full list of documents reviewed for declassification but not for final processing was also released so researches can request further prioritizations. Hopefully the NDC will also begin addressing the problems of equity re-reviews and the ineffectiveness of pass/fail determinations in addition to prioritizing high interest document sets.

The National Security Archive recently published Ambassador Prudence Bushnell’s never-before-seen personal notebooks, which she generously donated to the Archive. The notebeooks help fill the void left by agencies –especially the Clinton Library and the Department of Defense– that have yet to release hundreds of important documents on the Rwandan genocide, and help illustrate the complexities of the decision-making processes, the relationships between international parties, and Bushnell’s own interactions with on-the-ground actors in the conflict:

Volume 1 of the Lunar Observatory Study, conducted by the Military Lunar Base Program.

This week’s #tbt document pick is chosen with the Archive’s recent posting of a compilation of over 50 documents concerning US intelligence collection and analysis on the Soviet space program in mind. This week’s pick is the Air Force Ballistic Missile Division’s April 1960 study whose objective was to “determine an economical and sound approach for establishing a manned intelligence observatory on the moon.” The study states that decisions concerning the types of strategic systems to be placed on the moon (including a Lunar Based Earth Bombardment System) could be safely deferred for three to four years.

Happy FOIA-ing!