CIA Inconsistently Declassifies PDBs, FACA Survey Results, and Much More: FRINFORMSUM 9/24/2015

The same PDB, released in 1993 (L), and in 2015 (R).

The CIA recently congratulated itself for its unprecedented release of 2,500 declassified President’s Daily Briefs (PDBs) from the Kennedy and Johnson administrations (a direct result of a court battle waged by the National Security Archive). In several instances, however, the CIA inexplicably redacted more portions of documents than in earlier releases. For just one example, see The President’s Daily Brief of August 7, 1965, which was made available to the public on July 15, 1993, and contains information that was withheld from the 2015 release; the CIA apparently found a passage concerning Chinese Nationalists’ reports of sinking three Chinese Communist vessels – over 50 years ago – exempt under the (b)(1) national security exemption. Read more about “flimsy redactions” in the PDBs by the Archive’s John Prados here. These proven examples of harmless information that should not have been censored seriously call into question the legitimacy of the thousands of pages of information that the CIA is withholding from the PDBs.

The FOIA Advisory Committee’s subcommittees on both fees and oversight and accountability – which the Archive’s FOIA Project Director Nate Jones sits on – have each published the results of their respective surveys to learn more about their issues. The oversight and accountability subcommittee issued a survey to each federal agency’s FOIA public liaison to learn more about how FPLs’ roles vary from agency to agency. The results of the subcommittee’s survey indicate how often FPLs communicate with requesters, what methods they use to do so, and what steps these officers think need to be taken to improve FOIA administration across the board. Respondents overwhelmingly noted that increased training and increased funding are necessary for improved FOIA performance.

The fee survey asked federal FOIA processors, among other things, what advantages or disadvantages would result from eliminating FOIA fees. Respondents’ answers were mixed, expressing concern that eliminating fees would result in an increase of FOIA requests, while others pointed out that fees are not recouped by agencies in any event, and eliminating fees would cut back on oftentimes acrimonious negotiations and litigation. Troublingly, some comments implied (and in some cases outright stated) that FOIA fees were useful in deterring requesters from making requests, an action that is illegal.

A federal judge in San Francisco rejected an argument from U.S. Customs and Border Protection that the FOIA doesn’t allow lawsuits over “inaction” on FOIA requests in a case in which CBP is accused of “a pattern and practice of delaying response” to 38,000 requests. The CBP tried to argue –unsuccessfully– that FOIA lawsuits can only occur when an agency locates and refuses to produce documents, not when an agency fails to initiate a search. U.S. District Judge James Dosanto said, however, that CBP’s interpretation “flies in the face of FOIA’s plain meaning and several cases finding that unexcused delay is a perfectly valid claim.” Dosano further noted, “The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.”

Wrongful classification of information regarding CIA torture, in violation of Executive Order 13526.

OpenTheGovernment.org’s National Security Fellow Katherine Hawkins recently filed a complaint with the Information Security Oversight Office (ISOO) – the office responsible “to the President for policy and oversight of the Government-wide security classification system and the National Industrial Security Program” – challenging the continued classification of the CIA torture report. Hawkins argued that the government is classifying information including, but not limited to, the names of countries that hosted the CIA’s black site prisons and the CIA’s involvement in the torture of prisoners in Iraq, “in violation of the Executive Order that governs national security classification.” Hawkins writes, “Secrecy regarding black sites’ and torture has played a major role in ensuring that no CIA personnel could be prosecuted for torture, war crimes, destruction of evidence, or other relevant federal crimes.” She goes on to note that the secrecy “has ensured that civil courts were closed to victims of torture, indefinitely delayed trials of the accused perpetrators of the September 11 attacks, and put the United States in breach of its obligations under the Convention Against Torture.” The complaint is available here. For its part, Amnesty International filed a formal complaint with the Justice Department’s Inspector General “demanding an investigation into the lackluster and ‘inconsistent’ response” of DOJ officials to prosecute those responsible for the CIA’s torture program.

The government recently declassified additional portions of a 2009 report by six agencies’ inspectors general about the National Security Agency’s (NSA) post-9/11 surveillance practices. The newly declassified passages show that “President George W. Bush sought to retroactively authorize portions of the National Security Agency’s post-9/11 surveillance and data collection program” after the Justice Department identified a “gap” between what bulk domestic call data the NSA was authorized to collect and what it was actually collecting. Bush’s efforts to retroactively authorize the NSA’s surveillance practice without operational changes to the program “prompted a threat of mass resignation” by top DOJ officials, encouraging Bush to accept curbs to the surveillance program. The report also shows that the DOJ convinced the White House after March 2004 to limit the use of the bulk data collection program, known as Stellarwind, to Al Qaeda investigations, “rather than allowing it to be used for other types of international counterterrorism investigations, to make the argument that the program was legally justified as a wartime measure.”

Senator Ron Wyden (D-Or.) is applauding the removal of a provision to the 2016 Intelligence Authorization bill that would have required social media sites to report “terrorist activity,” noting that “Social media companies aren’t qualified to judge which posts amount to ‘terrorist activity,’ and they shouldn’t be forced against their will to create a Facebook Bureau of Investigations to police their users’ speech.” Wyden placed a hold on the bill in July shortly after the Senate Intelligence Committee approved the legislation, which would have required social media sites to report content posted by suspected terrorists, provided the companies were already monitoring the site. The provision was the subject of heavy criticism for being technically difficult – in part because “Social media sites generally do not monitor their sites for terrorism or any other content except child porn” – and the provision’s vague wording.

The website Governmentattic.org, which posts documents obtained under the FOIA, recently uploaded the Department of State’s Bureau of Intelligence and Research’s (INR) 2008 “Red Book” on the intelligence community and the handling of intelligence information. While the majority of the sections on indicators of intelligence information – specifically concerning the CIA and its reporting – is redacted, the document contains some interesting information on the intelligence community and signals intelligence (NSA markings).

State Department officials told the Washington Post that they solicited Hillary Clinton’s work-related emails that were stored on a private server in her New York home in the summer of 2014, and that the request was “prompted entirely by the discovery that Clinton had exclusively used a private e-mail system.” This contradicts Clinton’s inference that she turned the records over as soon as the Department formally requested her records, along with records of former secretaries Colin Powell, Condoleezza Rice, and Madeleine Albright – in October. State Department spokesman John Kirby told the Post on Tuesday that, “State Department officials contacted her representatives during the summer of 2014 to learn more about her email use and the status of emails in that account.” Kirby’s clarification comes after Clinton appeared Sunday on CBS’ “Face the Nation” and said that, “When we were asked to help the State Department make sure they had everything from other secretaries of state, not just me, I’m the one who said, ‘Okay, great, I will go through them again.’”

“we can neither confirm nor deny the existence of any ongoing investigation, nor are we in a position to provide additional information at this time.”

The FBI is currently investigating Clinton’s email set-up, and in a move that is worthy of an honorable mention in the securocrats’ hall of fame, told the State Department that it “can neither confirm nor deny the existence of any investigation.” At the behest of U.S. District Court Judge Emmet Sullivan the State Department requested information from the FBI on “whether investigators have been able to retrieve records from a backup thumb drive of Clinton emails or from a server turned over by a tech company Clinton hired.” In response, the FBI told the State Department, “At this time, consistent with long-standing Department of Justice and FBI policy, we can neither confirm nor deny the existence of any ongoing investigation, nor are we in a position to provide additional information at this time.” Senate Judiciary Committee Chairman Senator Chuck Grassley (R-Iowa) balked at the FBI’s response, saying, “Simply refusing to cooperate with a court-ordered request is not an appropriate course of action.”

Mikhail and Raisa Gorbachev with Pope John Paul II, December 1, 1989.

Today’s #tbt document pick is chosen with Pope Francis’ US visit in mind, and is a transcript of Mikhail Gorbachev’s December 1, 1989, meeting with Pope John Paul II in Vatican City. This document shows the pope expressing concerns about religious freedom in the Soviet Union, with Gorbachev raising “issues that he planned to discuss with President Bush in Malta, such as the concept of universal human values, particularly objecting to the use of the phrase ‘Western values’ as the basis for world order.”

Happy FOIA-ing!