Senate Judiciary Seeks NS Archive Testimony on Efforts to Improve Open Government, DOJ to Review “StingRay” Technology, and Much More: FRINFORMSUM 5/7/2015

Archive director Tom Blanton testifies before the Senate Judiciary on May 6, 2015.

The Senate Judiciary Committee asked the National Security Archive’s Executive Director Tom Blanton to deliver testimony for this week’s hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government,” which can be viewed here. Blanton – as always – delivered powerful testimony, emphasizing the need for a sunset to the B5 “withhold it because you want to” exemption, for more proactive disclosure online – because in this era, “the presumption of openness means a presumption of posting” –, and called for a SWAT team to process former Secretary of State Hillary Clinton’s emails, noting that since none of them are classified, the public should be able to see them without considerable delay.

DOJ claims (at left) a 91% release rate in its latest annual FOIA report summary, but a closer look (right) shows that figure is not nearly so high – and is in fact closer to 60%.

Blanton also carried out the yearly tradition of correcting the overly-rosy FOIA numbers presented by the Department of Justice’s Office of Information Policy, and –this year– also misleadingly cited by White House spokesperson Josh Earnest.  In his testimony Blanton notes that while “The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA… the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.” Blanton notes the DOJ numbers ignore 9 of the 11 reasons FOIA requests are denied, including improper “no records responses” and administrative closures, and points out that the actual release rate – of processed requests – is closer to 50 or 60%. Other highlights from the hearing included excellent testimony by the Associated Press’ General Counsel Karen Kaiser, Senator Al Franken (D-Minn) noting “we have yet to truly modernize FOIA,” and Senator Cornyn arguing for a presumption of openness.

The Archive joined colleagues, including OpenTheGovernment.org, the Federation of American Scientists, and DOCEX, in submitting comments to the CIA suggesting which CIA operational files, which, due to the CIA Information Act of 1984, are exempt from the FOIA, should be removed from their exempted status. Our number one suggestion? That the CIA stop calling histories “operational” and grant the public the ability to request search and review of the Clandestine Service History Program files.

“Reported Information Related to NY and WDC Terrorist Attacks.”

The CIA, however, hides more than just histories in its operational records system. It routinely conceals historically important documents as well, including much of the official record on Osama bin Laden. Given how difficult it is to obtain official records on bin Laden (in large part because the DOD transferred many of its bin Laden records to the CIA in 2013) the Archive gladly touted the State Department’s recent release of three fascinating memos on tips concerning bin Laden’s whereabouts in the immediate aftermath of 9/11. One document, a Secret Department of State cable dated September 20, 2001, from the US Embassy in Caracas, Venezuela, subject: “Reported Information Related to NY and WDC Terrorist Attacks,” contains a tip that is likely correct – that bin Laden was in the Panjab-Kabul region of Afghanistan. The release of these documents provides a fascinating glimpse into the multi-threaded, many-dead-ended search for bin Laden, but they are a drop in the bucket compared to the vast swaths of information that remains obfuscated by the CIA’s damaging operational files exemption.

The Department of Justice is beginning a review of the agency’s use of “StingRay” cell phone tracking technology after reports – and subsequent lawsuits – that the US Marshals – with the aid of the CIA – were harvesting data from American cell phones from StingRays, small planes “mounted with controversial cell-phone tracking systems.” The DOJ, which is the parent agency for the Marshals, the FBI, the Drug Enforcement Administration (DEA), and a host of other law enforcement agencies, announced that it “is in the process of examining its policies to ensure they reflect the department’s continuing commitment to conducting its vital missions while according appropriate respect for privacy and civil liberties.”

A federal appeals court in Atlanta ruled this week in a 9-2 vote that the government doesn’t need a warrant to obtain historic cell phone location, reversing an earlier ruling. “The court agreed with a long-held view that an American has no reasonable expectation of privacy in certain types of information voluntarily turned over to third parties such as phone companies and banks.” Several of the concurring judges, however, suggested it might be time for the Supreme Court to re-evaluate the third party doctrine.

The National Security Agency (NSA) can now “automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored,” according to documents leaked by former NSA contractor Edward Snowden and recently published by the Intercept. Dubbed “Google for Voice,” the computer programs are “designed to analyze and ‘extract’ the content of voice conversations, and even use sophisticated algorithms to flag conversations of interest” – and were developed with no public oversight.

Steven Aftergood of Secrecy News reported this week on a growing body of secret law – specifically the classified annexes that have accompanied intelligence appropriations bills since FY1978, none of which has ever been made public. Politico reported just last month that “Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage” the shift of the drone program from the CIA to the DOD. Aftergood notes that the annexes “legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.” He notes, however, that the secret intelligence legislation is but “a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.”

Daniel Chong received a $4.1 million settlement and no explanation for his five-day confinement.

The DEA stonewalled Senators’ questions during a hearing this week, refusing to explain how a California university student was left in a holding cell without food or water for five days in 2012. The student, Daniel Chong, almost died of dehydration, and was awarded a $4.1 million settlement from the DOJ. A recently released DOJ inspector general report casts “doubt on DEA agents’ claims that they didn’t hear Chong’s repeated shouts and bangs in a bid to get someone’s attention.” While DEA Deputy Assistant Administrator of Drug Diversion Joseph Rannazzisi told Senator Chuck Grassley (R-Ia) that the incident was “regrettable,” he refused to confirm that the agency would respond to a 19-page letter Grassley sent last year concerning the incident. The DEA also ignored two letters from Senator Dianne Feinstein’s office concerning Chong’s treatment. The Los Angeles Times recently reported that the harshest punishment any of the DEA agents involved received was a seven-day suspension.

Leaked versions of heavily redacted Navy FOIA responses on conditions at Camp Lemonnier in Djibouti, the base for US pilots flying over Yemen and Somalia that is entirely dependent on civilian air-traffic controllers, reveals the base is chaotic, dangerous, and “mind-boggling.” The leaked documents – obtained by the Washington Post “from a source upset about the military’s attempt to conceal the problems” – reveal controllers habitually nap while on duty, chew qat – a traditional Yemeni stimulant banned in the US –, and intimidate those who attempt to regulate their behavior, even threatening a Navy officers with a pipe.

Several defendants await the resumption of proceedings at the historic Condor trial in Buenos Aires in 2015. Among the 25 high-ranking officials originally charged were former Argentine presidents Jorge Videla (deceased) and Reynaldo Bignone (aged 87).
(Reproduced with permission of Pagina 12)

The National Security Archive recently posted key documents on Operation Condor that were presented by its Southern Cone analyst, Carlos Osorio, at a historic trial in Buenos Aires of former military officers earlier this year. During 10 hours on the witness stand Osorio introduced one hundred documents into evidence for the court proceedings. His testimony was profiled on May 3 in a major feature article published in the Buenos Aires daily, Pagina 12.

This week’s #tbt pick is chosen with Osorio’s testimony in mind, and is a selection of declassified documents that suggest the September 1976 car-bombing in Washington, D.C., which was planted by agents of the Chilean secret police under the car of General Pinochet’s leading critic in the United States, Orlando Letelier, and killed him and his American colleague Ronni Moffitt – might have been prevented.

Happy FOIA-ing!