DEA Races to Bottom of FOIA Barrel, Database of WWII Soldiers Army Ran Chemical Experiments on by Race, and Much More: FRINFORMSUM 11/5/2015

DEA withholds all documents on legality of its 21-year phone record surveillance program.

The Drug Enforcement Administration (DEA) is claiming that all 38 pages of documents responsive to Archivist Jeffrey Richelson’s FOIA request for records concerning either the legality of the agency’s now defunct phone records program, or the directive to terminate it, are exempt. It was revealed earlier this year that the phone records program “tracked billions of Americans’ [international] phone calls, even people not suspected of crimes, for decades” –from 1992 until 2013 – and was “a clear precursor to the NSA program.” The DEA cites a handful of FOIA Exemption 7 sub-clauses concerning information compiled for law enforcement purposes to withhold the documents, which were located by both the DEA’s Office of Chief Counsel and the Intelligence Division.

It’s worth mentioning here that in February 2015, documents released to C.J. Ciaramella and MuckRock showed that the DEA employs a practice known as “parallel construction” – construction of two difference chains of evidence – to “hide surveillance programs from defense teams, prosecutors, and a public wary of domestic intelligence practices.” In the same release, which outlines four “acceptable methods” of concealing sensitive sources that “Americans will accept (so far…)” including parallel construction, the DEA redacted all references to a widely-used “workable” method by citing, yet again, Exemption 7. As Shawn Musgrave points out, “To reiterate, the DEA redacted the name of a method its trainers and legal auditors deemed not only constitutional but also palatable to the public.” These practices, combined with blanket FOIA denials, help ensure that the DEA remains even less transparent than its intelligence community counterparts. The DEA ought to take a page from DNI Clapper’s book instead, and “Be proactive and clear in making information publicly available.” (The DEA also doesn’t post any FOIA-requested records in its FOIA reading room, despite the nearly 20-year-old E-FOIA amendments requirement that agencies systematically post records released through FOIA.)

Guesses?

The DEA is also frustrating Providence journalist Philip Eil’s efforts to obtain “thousands of pages of public evidence from” one of the largest prescription drug trials in US history, compelling Eil to file a FOIA lawsuit for the records’ release. In 2012 Eil filed a FOIA request with the DOJ’s Executive Office of U.S. Attorneys for the federal trial evidence used to convict Dr. Paul Volkman, deemed by the DOJ to be the “largest physician dispenser of oxycodone in the United States from 2003 to 2005”, and who received four consecutive life sentences as a result of the trial. The DOJ transferred the request to the DEA eight months after receiving Eil’s request, at which point the DEA “began to review 15,000 pages and over time processed portions of them, releasing about 1600 pages to Eil and redacting much of the information under” FOIA Exemption 7. Eil filed suit over the egregious withholdings, and notes, “The right to a public trial is a basic tenet of our society, and it’s scary to think that any trial in the United States, especially one of this magnitude, would be retroactively sealed off from public view, as this case has.”

NPR has built a database of nearly 4,000 names of WW II soldiers that the Army ran chemical experiments on according to race. While the DOD declassified documents in 1993 revealing that it had exposed some 60,000 enlisted men to mustard gas and other chemical agents, it concealed that the tests were conducted by race – a revelation that came to light thanks to NPR’s Caitlin Dickerson’s interviews and FOIA-based reporting. According to Dickerson, African-American, Japanese-American and Puerto Rican enlisted men served as proxies “so scientists could explore how mustard gas and other chemicals might affect” enemy troops, while white soldiers were used as scientific control groups. VA officials recently told NPR “that since 1993, the agency had been able to locate only 610 test subjects, to offer compensation to those who were permanently injured. NPR’s database, compiled over six months, includes more than 3,900 individuals and information about the last known location of more than 1,700 of them.”

NPR stepped up and built a searchable database after the VA said it couldn’t find veterans in order to compensate them.

LexisNexis Immigration Law Community editor and contributor Daniel M. Kowalski has added two sets of FOIA-released documents from the Department of Homeland Security (DHS) to the site’s immigration law legal newsroom. The sets detail illegal immigration across the US’s southern border and the location of facilities for unaccompanied minors.

The Department of Homeland Security recently announced that its component agencies will be required to obtain search warrants before using Stingray cell phone surveillance devices – with the Secret Service being the exception in certain circumstances. In its announcement, the DHS reiterated the Justice Department’s legal arguments requiring users to obtain a warrant, which specifies “emergency circumstances when law enforcement can go around the Fourth Amendment.” Senator Leahy said in response to the DHS position that, “I am disappointed that DHS has included the same problematic exception to the warrant requirement that is in the Justice Department’s policy. Additionally, this policy is limited to criminal investigations, and it is not clear what rules will apply to any use of cell-site simulators for other DHS missions.”

The Director of National Intelligence’s Open Source Center, which has collected and analyzed open source intelligence information across all media since 2005, has been re-designated the Open Source Enterprise and incorporated into the CIA’s new Directorate of Digital Innovation (DDI). The Open Source Center itself replaced the CIA’s Foreign Broadcast Information Service, and provided “a publicly available line of products, including translations and open source analyses” until the service was abruptly cancelled in 2013. While CIA spokesperson Ryan Trapani said the Open Source Enterprise has no plans “to expand the scope of its services to include the regular release of unclassified, non-copyrighted materials to the public”, Steve Aftergood has posited, “the new ODNI transparency implementation plan may present an occasion to reconsider the CIA non-disclosure policy regarding unclassified open source products.”

A new interactive online tool built by the FBI to help teachers and students identify extremists is being criticized for focusing too heavily on Islamic extremism, despite the fact Islamic extremism has not been a factor in the latest spate of school and mass shootings in the US. The program, entitled “Don’t Be a Puppet,” was developed despite a May 9/11 review commission report that cautioned that the FBI was not “‘an appropriate vehicle’ for producing prevention programs to counter violent extremism.”

The D.C. Court of Appeals recently ruled that a US citizen has no constitutional recourse to sue the FBI agents involved in his alleged abduction and torture while on a 2006 trip to Africa “to broaden his understanding of Islam.” Judge Janice Rogers Brown wrote, “Matters touching on national security and foreign policy fall within an area of executive action where courts hesitate to intrude absent congressional authorization,” with Judge Brett Kavanaugh agreeing, writing separately that “it’s up to Congress, not the courts, to decide whether U.S. officials can be sued for conduct in foreign countries ‘in connection with the war against al Qaeda and other radical Islamic terrorist organizations.’”

A Navy admiral who illegally retaliated against suspected whistleblowers is likely being promoted. The Defense Department inspector general upheld three out of five allegations that Rear Adm. Brian L. Losey wrongly fired, demoted, or punished subordinates “during a vengeful but fruitless hunt for the person who had anonymously reported him for a minor travel-policy infraction” and recommended the Navy take action against Losey for violating whistleblower protection laws. The Navy, however, dismissed the findings. Retired Army Special Forces colonel Fredrick D. Jones served under Losey and told The Washington Post, “The lack of action demonstrates the Whistleblower Reprisal Protection Act’s ineffectiveness in protecting victims, and highlights the lack of accountability for those individuals who have broken the law.”

Deputy Attorney General Sally Yates cautioned, on the eve of the early release of thousands of federal inmates, that the Bureau of Prisons most successful training and re-entry program, Federal Prison Industries (FPI), is half the size of what it was ten years ago. The program dramatically impacts participants’ recidivism rates, and has a waiting list of nearly 11,000. Despite prisoners’ demand for the program, Yates noted that a “reduced demand” – presumably from prisons themselves – has caused it to shrink. Yates also said that the DOJ will be examining the BOP’s literacy programs, noting that “In the coming months, we plan to take a hard look at the Bureau of Prisons’ literacy efforts and roll out changes,” going on to say that, “No one should leave the Bureau of Prisons without being able to read.” While this is admirable, it remains to be seen what effect this will have – if any – on the growing network of for-profit prisons.

Shredded CIA Cable reporting on information provided by an Iranian contact, secret, September 1, 1979.

This week’s #tbt document pick is chosen with the anniversary of the Iranian hostage crisis, which began 36 years ago this week on November 4, 1979, in mind. This week’s #tbt pick is a selection of American sources on U.S.-Iran relations since World War II.

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Happy FOIA-ing!