DHS’ Wireless Kill Switch Protocol, DOD’s Terrible Guidance on Journalists in its Law of War Manual, and Much More: FRINFORMSUM 8/13/2015

SOP 303

The Electronic Privacy Information Center (EPIC) announced this week that it filed a petition with the Supreme Court to review the U.S. Court of Appeals for the D.C. Circuit’s February 2015 ruling that allowed the Department of Homeland Security (DHS) “to withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies.” The protocol, Standard Operating Procedure 303 (SOP 303), has been the subject of FOIA litigation since 2013. In addition to seeking a “meaningfully complete” copy of the guidance, EPIC challenges the appeals court’s interpretation of FOIA exemption (7)(F), “which permits withholding of law enforcement information that, if released, ‘could reasonably be expected to endanger the life or physical safety of any individual.’” The FOIA request at the root of EPIC’s Supreme Court petition sought information on “the 2011 Bay Area Rapid Transit (BART) disruption of all cellular service inside four San Francisco transit stations for three hours in order to suppress a mass public protest against a BART officer’s lethal shooting of a homeless man, Charles Hill.” DHS first told EPIC it had no documents responsive to their request, only providing EPIC with a heavily redacted version of SOP 303 after EPIC sued in district court.

Journalists and Spying…page 175.

The New York Times Editorial Board published a damning rebuke of the Defense Department’s 1,176-page Law of War Manual this week. The Board took particular issue with the DOD’s guidance on journalists, including its instructions that members of the press may in some cases be categorized as “unprivileged belligerents.” The manual goes on to note, “that ‘Reporting on military operations can be very similar to collecting intelligence or even spying,’ so it calls on journalists to ‘act openly and with the permission of relevant authorities.’ It says that governments ‘may need to censor journalists’ work or take other security measures so that journalists do not reveal sensitive information to the enemy.’” The Board calls on the secretary of defense to revise its guidance on journalists.

Tyler Drumheller, the CIA officer that exposed the Bush administration’s reliance on false claims made by an Iraqi informant known as Curveball (real name Rāfid Aḥmad Alwān) to launch the Iraq War, died this week at the age of 63. Despite warnings from his German handlers (Curveball defected to Germany in the 1990s and sought asylum there) and British intelligence that his behavior was erratic and that he could be lying, President Bush cited Curveball’s false claims on Iraq’s biological weapons programs in his 2003 State of the Union address – claims that were repeated in Secretary of State Colin Powell’s  famous February 5, 2003, presentation to the United Nations Security Council on Iraq’s weapons program. Visit the Archive’s posting, The Record on Curveball, for a detailed accounting, based on declassified documents and key participants’ testimony, on the importance of Curveball’s phony intelligence to the origins of the Iraq War.

U.S. Secretary of State Colin Powell holds up a model vial of anthrax during his historic presentation before the United Nations Security Council, February 5, 2003. (Image extracted from a video available from the White House Web site.)

Reviewers from five of the Intelligence Community’s (IC) 17 agencies are now working with the State Department to vet 55,000 pages of Hillary Clinton’s emails that were stored on a personal server during her tenure as secretary of state.

The State Department’s FOIA chief, John Hackett, announced this development last week in connection with a FOIA lawsuit brought by Vice’s Jason Leopold. The need for representatives from roughly one third of the intelligence community to help review, and get a crack at classifying, the documents is ostensibly warranted by concerns that the trove contains “hundreds of potentially classified emails,” even though none were sensitive enough at the time of their creation to warrant a classification stamp. Hackett revealed that the IC reviewers began working with the Clinton emails on July 15, and “perform preliminary screening of emails to identify their agencies’ equities.” It was also reported this week that members of the IC review team advised the State Department to classify two unreleased Clinton emails as TOP SECRET//SI/TK//NOFORN.  Of course, the brief memo reporters used to break this story was also classified at the this level.

The State Department, which is releasing Clinton’s emails on a rolling basis, has already retroactively classified portions of dozens of Clinton’s emails that it has released. The latest release occurred earlier this month, but Leopold notes that, “the release fell short of the 15 percent of the more than 33,000 emails a federal judge ordered the State Department to release every month. State Department spokesman Mark Toner said it was due to the stepped-up security review of Clinton’s emails. He said the State Department would make up for the ‘gap.’”

Brennan’s un-sent apology letter.

The CIA released hundreds of documents to Leopold and Ryan Shapiro this week during the course of a FOIA lawsuit for documents concerning the CIA’s spying on Senate Intelligence Committee staffers investigating the agency’s torture program. One remarkable document, whose inclusion in the release was apparently a mistake, is a July 28, 2014, draft letter by CIA director Brennan apologizing to senators Dianne Feinstein and Saxby Chambliss. In the letter, Brennan admitted that the CIA’s actions were wrong and went against an agreement between the Committee and the Agency. The letter was prompted by CIA inspector general David Buckeye’s report finding the CIA officers involved broke federal law. Brennan never sent the letter, however, opting instead to send the senators a letter informing them that he would set up an independent review board to investigate the matter. The review board, handpicked by Brennan, cleared the officials of any wrongdoing and concluded that the officials had acted reasonably in the face of a potential security breach.

Steven Aftergood recently reported that the upcoming retirement of the Librarian of Congress, James Billington, might pave the way “for a massive expansion of the Library’s digitized holdings, enabling universal public access to its historic and cultural riches.” Aftergood also posits that “the arrival of new leadership at the Library of Congress might also set the stage for a change of policy authorizing public access to non-confidential products of the Congressional Research Service, which is formally a part of the Library.”

The Air Force Intelligence Service recently redacted its role in the 1983 exercise Able Archer 83, a NATO nuclear release exercise utilizing new “command and control procedures with particular emphasis on the transition from purely conventional operations to chemical, nuclear [operations]”, in response to an Archive FOIA request. Archive FOIA Project Director Nate Jones posted the omission after pouring through fellow Archivist Jeffrey Richelson’s posting, The Pentagon’s Spies. The posting contains an internal History of the Air Force Intelligence Service (USAFIS) for 1983, one of whose footnotes reveals that a redacted portion of the document concerns the Air Force Intelligence Service’s participation in Able Archer 83.  Jones has asked for a re-review of the document, and MDRed the footnotes, and is hopeful that the Air Force will release more information.

The CIA recently further declassified a list of Inspector General audit reports that the agency’s IG completed between 1999 and 2013. The list, which remains heavily redacted, reveals that the IG – tasked with oversight of the agency – completed investigations on, among other things, “Administration of Headquarters Area Vehicles,” “Contract Award Process for the CASES Program,” and “CA Program Authorized by the 17 September 2001 Presidential Finding.” Each of the reports can now be requested under FOIA or MDR (although MDR is in all likelihood the better route — and the reason why the CIA is continuing to attack MDR). The CIA’s last IG retired in February and the agency has now gone – at the time of writing this – six months without a replacement.

Excerpts from “CIA Activities in Chile,” released by the CIA, September 19, 2000

This week’s #tbt document pick is chosen with the death of Chilean General Augusto Pinochet’s intelligence chief, Manual Contreras, in mind. This week’s pick is a CIA report, “CIA Activities in Chile,” which was released to the Archive in 2000 and notes that “The CIA made Gen. Manuel Contreras, head of DINA, a paid asset only several months after concluding that he ‘was the principal obstacle to a reasonable human rights policy within the Junta.’ After the assassination of Orlando Letelier and Ronni Moffitt in Washington D.C., the CIA continued to work with Contreras even as ‘his possible role in the Letelier assassination became an issue.’”

Happy FOIA-ing!