AP, RCFP Sue over FBI’s Impersonation of Journalists, and Much More: FRINFORMSUM 9/3/2015

Excerpt from documents obtained by EFF showing the fake AP article FBI agents sent to suspect.

The Associated Press and the Reporters Committee for Freedom of the Press are suing the Department of Justice over the FBI’s creation of a fake news story, which it attributed to AP, to ensnare a suspect. In 2007 the FBI created the fake story, concerning bomb threats made at a Seattle-area high school, and sent it in a private MySpace message to the 15-year-old student who was suspected of making the threats. The article contained malware that, once clicked on by the suspect, allowed FBI agents to track him. The AP and RCFP both submitted FOIA requests to the FBI regarding the matter, and are now suing to compel the bureau to produce the relevant records. The RCFP’s Litigation Director Katie Townsend argues that the FBI’s impersonation of journalists “undermines the credibility of the independent news media, and should not be tolerated. Yet while the public clearly has a strong, compelling interest in knowing more about the FBI’s use of this tactic, the FBI seems determined to withhold that information. We have been left with no choice but to look to the court for relief.”

Five prominent whistleblowers are suing the DOJ, FBI, and the National Security Agency (NSA), as well as their respective directors, “for violating their constitutional and civil rights after they complained about government waste and fraud through proper channels.” Former NSA employees Thomas Drake, Ed Loomis, J. Kirk Wiebe, and William Binney are joined by former House Intelligence Committee staffer Diane Roark in seeking $100 million in damages under the Whistleblower Protection Act. The plaintiffs all worked on the NSA’s $4 million surveillance program, THINTHREAD, and blew the whistle once the relatively inexpensive program was scrapped in favor of the contracted $4 billion TRAILBLAZER program, which “never worked properly.” The plaintiffs filed a complaint with the DOD alleging the TRAILBLAZER contract constituted wasteful spending, prompting the DOD inspector general (IG) to issue “a scathing report.” The NSA retaliated by arguing that the whistleblowers leaked information on the programs to the New York Times, prompting the DOJ to conduct “a series of raids that disrupted the plaintiffs’ lives and livelihoods.” It was later shown that a former lawyer with the Foreign Intelligence Surveillance Court was behind the NYT leak.

OpentheGovernment.org recently posted the latest results of a June 2015 request by the Senate Committee on Homeland Security and Governmental Affairs for each agency’s Inspector General to review the role of political appointees in the FOIA response process. The IGs were instructed to review the period from January 1, 2007, “to the present, and to provide a certification from the Chief FOIA Officer that either 1) no non-career employees were involved in the FOIA process, or 2) their involvement did not cause undue delays or additional withholding of information.” The results from eight agencies – Amtrak, the Department of Commerce, the DOD, the Department of Transportation, the Environmental Protection Agency, the Federal Housing Finance Agency, the Nuclear Regulatory Commission, and the Social Security Administration – are now available, and none found any evidence of interference from political appointees in the FOIA process. Despite these findings, other agencies’ report cards likely won’t be so pristine: DHS political appointees vetted hundreds of potentially politically sensitive FOIA requests beginning in 2009; and “an April 2009 memo issued by then-White House Counsel Greg Craig instruct[ed] agencies to consult with the White House before releasing any records involving ‘White House equities.'”

A 2003 Department of Justice Office of Legal Counsel opinion arguing that the president may withhold weapons of mass destruction (WMD) proliferation-related information from Congress was recently released thanks to the Freedom of Information Act. Steven Aftergood reports that, “The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees ‘fully and currently informed of all intelligence activities.’” It’s worth noting that in its FOIA release, the DOJ said that while the OLC opinion was protected by FOIA’s exemption 5, the department was using its discretion to release the document in its entirety.

Excerpts from the 2002 FBI memo.

A 2002 FBI memo obtained under the FOIA reveals that the DOJ considered prosecuting Anwar al-Awlaki, a US citizen who was targeted and killed in a 2011 CIA drone strike in Yemen, on interstate prostitution charges. “The memo shows that officials considered charging Awlaki, who left the United States earlier in 2002, for traveling from his Virginia home into Washington to visit prostitutes. The cleric returned to the United States only once more, for a visit in October 2002, and he was never charged.”

A federal judge ruled this week that the CIA must produce an index of records responsive to a think tank’s eleven-year-old FOIA request for information on the agency’s role in the killing of Pablo Escobar, as well as an explanation why the CIA believes their release would harm US interests. The ruling stems from a FOIA request filed by the Institute for Policy Studies for the records on Escobar and the Colombian gang Los Pepes, which “was at war with Escobar prior to his death.” IPS’s Paul Paz y Miño said that while “The CIA argues that they are exempt and they did not do an initial search there and he has now confirmed that they do need to search the directory of operations, or turn over…what documents they can about this specific operation of the CIA investigating connections between U.S. agencies and the Colombian Search Bloc and this death squad.”

The Department of State, which is releasing Hillary Clinton’s emails on a rolling basis, retroactively classified about 150 emails out of its latest release of 4,368 documents. The emails show, among other things, Clinton’s frustration with the Department’s classification system; in one February 2010 exchange her foreign policy adviser Jacob Sullivan lamented that he couldn’t send her a public statement made by British Prime Minister Tony Blair “because it had been entered into the State Department’s classified system,” to which Clinton said “It’s a public statement! Just e-mail it to me.” Perhaps of greater interest, however, is that the new cache reveals that the State Department’s “help desk” was alerted to her private email use as early as 2010 when it investigated “why a correspondent was getting a ‘fatal error’ when sending messages to Clinton’s obscure address.”  No one at State’s IT help desk (or the FOIA program) blew the whistle about the Secretary’s improper email use.

The National Security Archive recently posted over forty declassified documents on the use of drones and other methods of aerial surveillance for domestic national security purposes. The timely publication of records on surveillance flights and other assorted aircraft to spy on civilian targets in the US complements concurrent debates concerning electronic surveillance of telephone and email records. The documents posted include examples of imagery obtained by the KH-9 spy camera of two targets in New York – the World Trade Center and Shea Stadium, and a description and assessments of the Customs and Border Protection service’s use of drones.

The Archive also recently spotlighted the anniversary of the historic 1991 closing of the Soviet Union’s nuclear test site at Semipalatinsk. The closing renewed public attention in more than 20 years of US, Russian, and Kazakh cooperation to remove and clean up after nuclear weapons. The cooperation was the subject of a landmark Archive-organized conference earlier this summer, and the conference briefing book includes the declassified transcript of the May 1992 meeting between then-US presidents George H.W. Bush, and Kazakh president Nursultan Nazarbayevof, who ordered the closure of the Semipalatinsk test site. The briefing book also includes the highest-level memcons, cables, and reports covering the crucial early years (1991-1995) of Nunn-Lugar-funded cooperative threat reduction in Kazakhstan.

Wanted Poster: Pablo Escobar Gaviria, ca. 1993

This week’s #tbt pick is chosen with the latest developments in the FOIA suit for records on the CIA’s involvement in Escobar’s death and its cooperation with Los Pepes in mind, and is a 2008 posting by Archive analyst Michael Evans that contains “the most definitive declassified evidence to date linking the U.S. to a Colombian paramilitary group.”

Happy FOIA-ing!