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Meaning of “Discretionary” Lost on Some FOIA Processors, Section 215 Sunset Fast Approaching, and Much More: FRINFORMSUM 5/28/2015

May 28, 2015


The State Department’s use of FOIA’s discretionary b5 exemption – that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public – to unnecessarily hide a suggestion from former Secretary of State Hillary Clinton is emblematic of the abuse of the b5 “withhold it because you want to” exemption across the government. The State Department recently released a batch of Clinton’s Benghazi emails, including an April 8, 2011, email from Clinton to Jake Sullivan containing a private intelligence report entitled, “UK game playing; new rebel strategists; Egypt moves in.” In the email Clinton notes that “using private security experts to arm the opposition should be considered,” a suggestion that is withheld in the official release. The New York Times posted an unredacted version of the email to its website revealing the suggestion, begging the obvious question, why did the State Department use the “deliberative process” exemption to hide this information?

The House Oversight and Government Reform Committee recently sought examples from the open government community, including the National Security Archive, of FOIA failures in preparation for its June 2nd hearing on systemic problems with the FOIA process. Nate Jones, the Archive’s FOIA Project Director, will be providing expert testimony. The Committee has also posted a form to its web site allowing members of the public to indicate which FOIA frustrations they’ve encountered, including “Excessive or inappropriate redactions” or “Lengthy delays.” Secrecy News’ Steve Aftergood notes that the scope of the Committee’s investigation into complaints about the FOIA process is “probably unprecedented.”

Sen. Dianne Feinsteins bill "ontains various mandates for how phone companies would be required to store the data." Photo: Bill Clark/CQ Roll Call

Sen. Dianne Feinstein’s bill “contains various mandates for how phone companies would be required to store the data, something privacy advocates argue amounts to a re-creation of the NSA database in private hands.” Photo: Bill Clark/CQ Roll Call

Surveillance legislation to rein in the National Security Agency’s (NSA) bulk collection of American phone records is facing an uphill battle in the Senate. The USA Freedom Act has already been approved by the House, but has failed to garner the necessary 60 votes in the Senate, and continues to face Senate Majority Leader Mitch McConnell’s (R-Ky.) adamant resistance. If no compromise is reached, the authority that the NSA interprets as granting it the right to collect and store metadata from Americans’ phone calls – Section 215 of the Patriot Act – will expire on June 1. Sen. Diane Feinstein, in a tepid attempt at compromise, proposed new legislation that “rolls back a number of key provisions in the USA Freedom Act” in an effort to prevent the NSA’s surveillance authority from lapsing.

A Department of Justice Inspector General report shows that — for seven years — the DOJ failed to implement privacy rules or provisions for information collected under Section 215, which also “enables intelligence agencies to obtain court orders to gather all manner of records in foreign terrorism investigations.” A 2006 reauthorization of the Patriot Act required the Department to do so, however it failed to adopt rules that met the statute until August 2013. The IG report found ”a significant amount of the delay is attributable to the department, specifically to disagreements between the FBI and NSD [National Security Division] over how to craft the rules.”

Marcy Wheeler recently posted a table compiled by the Office of the Director of National Intelligence (ODNI) “showing the status of procedures Agencies follow to protect US person information when using data obtained under EO 12333” to her blog, Empty Wheel. The key takeaway is a depressing one, and is that 34 years after the Reagan-era Executive Order that is the legal basis for most NSA surveillance went into effect, “several intelligence agencies still don’t have Attorney General approved procedures,” including the Drug Enforcement Administration’s Office of National Security Intelligence, the Department of Homeland Security’s Office of Intelligence and Analysis, and the Department of Treasury Office of Intelligence and Analysis.

Representatives Duncan D. Hunter (R-Calif.) and Jackie Speier (D-Calif.) have asked the Army’s Criminal Investigation Command (CID) to drop what they allege is a “retaliatory investigation” into Army Lt. Col. Jason Amerine “for whistleblowing to Congress over our completely dysfunctional system for recovering hostages.”Amerine says that the FBI formally complained to CID about his participation in the current Congressional investigation into hostage negotiating tactics, which was initiated after American hostage Warren Weinstein was killed in Pakistan in a drone strike this January.

A CIA interrogator filed a complaint in April 2013 with the agency’s Inspector General’s office seeking whistleblower protection from reprisal he allegedly faced for cooperating with the Senate Intelligence Committee’s investigation into the CIA’s torture program. In documents obtained by VICE News in response to a FOIA lawsuit, the interrogator claims the agency punished him by “failing to reimburse him for legal fees he incurred as a result of the investigations.” The documents notably reveal that, “those who were not involved in conduct relevant to the [Senate] report have been reimbursed. However, those who were involved in conduct relevant to the report, including [the interrogator who filed the whistleblower complaint] will have to wait until the [Senate] report is reviewed to ensure they are not implicated in any wrongdoing. [Redacted] reiterated that the [Senate] report’s findings have an impact on their indemnification.”

Synergising Network Analysis Tradecraft: Network Tradecraft Advancement Team

Synergising Network Analysis Tradecraft: Network Tradecraft Advancement Team (NTAT)

The Intercept reported this week both that the NSA considered bugging medical supplies to find Osama bin Laden, and that the NSA and its Five Eye counterparts planned to hack Google and Samsung app stores to infect smart phones. The plan to infiltrate bin Laden’s medical supplies is outlined in a June 2010 NSA presentation entitled, “Medical Pattern of Life: Targeting High Value Individual #1,” and it remains unclear if the plan transitioned from the idea stage to planning. The app store hack is revealed in a presentation on the Network Tradecraft Advancement Team, and was “part of a pilot project codenamed IRRITANT HORN.” Former NSA contractor Edward Snowden leaked both of the documents.

The State Department will begin releasing Hillary Clinton’s emails on June 30, and will update the releases every 30 days. The most recent timeline for releasing the former secretary’s emails was announced after the Department argued – and lost – that it could not make Clinton’s emails public until January 2016.

Excerpts of the diary of senior Soviet official Anatoly S. Chernyaev – published this week by the National Security Archive – covers the year 1975 and shows the Soviet Union was already facing a declining economy, contradictions between its policy of détente and its leadership of the international communist movement, and “senility” in its leadership. This is the tenth set of extracts the Archive has posted from the Chernyaev diary covering critical years from the 1970s through 1991.

This week’s #tbt document pick is chosen with news that a US Army lab in Utah sent live anthrax to facilities in nine other states and a US air base in South Korea in mind. Today’s #tbt pick is a collection of US and Soviet intelligence reports and diplomatic cables the Archive published in 2001 that attempt to determine the cause of the deadliest anthrax epidemic known, which occurred at a Soviet biological weapons facility located in Sverdlovsk (now Ekaterinburg, Russia) in 1979. At least 68 people died in the incident, which was a focus of intense controversy and heated exchanges between Washington and Moscow during the 1980s.

Happy FOIA-ing!

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