FOIA Fee Survey, New NSArchive Nuclear History Publication, and the National Security Archive’s 30th Anniversary! FRINFORMSUM 12/17/2015

Open gov input needed!

If you haven’t yet, please help the National Security Archive and the Project on Government Oversight provide a more representative view of FOIA fees by filling out and helping distribute a very quick survey! The U.S. government’s FOIA Advisory Committee recently distributed a similar survey – but only to federal FOIA processors. Now we need to hear from non-government FOIA stakeholders so that your views on FOIA fees can be cataloged and documented. The survey will remain open until January 14, 2016.

This week the National Security Archive published a new collection of more than 2,000 declassified documents on the nuclear weapons policies of the Nixon and Ford administrations. Some highlights from the new set – a publication of the Digital National Security Archive (DNSA) with the help of our partners at ProQuest – include a Top Secret August 10, 1972, memo that contains one of the most explicit declassified discussions of the Madman Theory – Nixon and his national security adviser Henry Kissinger’s belief that they could compel “the other side” to back down during crises in the Middle East and Vietnam by seeming “crazy” enough to be willing to launch a nuclear strike. Another document, a January 2, 1974, memo, recounts the SCYLLA III-73 war game showed optimism that “limited use” of nuclear weapons could be employed for signaling to avoid a broader East-West nuclear conflict. In the SCYLLA III-73 scenario, the White House authorized 85 nuclear weapons for use in order to prevent a Soviet invasion of Iran – 54 of which were used.

A recent Bulletin of the Atomic Scientists post by Matthew R. Costlow missed the point of the key 1990 President’s Foreign Intelligence Advisory Board (PFIAB) report, which was released to the National Security Archive after a 12-year fight and found that the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during the 1983 NATO nuclear release exercise, Able Archer 83. Although the report concludes that Soviet military leaders may have been seriously concerned that the US would use Able Archer 83 as a cover of launching a real attack and highlighted the danger of nuclear war through miscalculation, Costlow posits that it “appears the evidence doesn’t suggest that further cuts to US nuclear weapons are a solution to future nuclear crises.” Nate Jones, the Archive’s Able Archer expert, argues that Costlow “misuses a report that concludes that the United States faced an unacceptable risk of nuclear war through miscalculation during Able Archer 83 to argue that ‘achieving a world with many fewer nuclear weapons [does not necessarily mean] we will experience fewer nuclear crises.’ In fact, in this case Reagan’s and Gorbachev’s elimination of the entire class of extremely destabilizing intermediate -range nuclear forces in Europe did precisely that.” For a more nuanced look at nuclear crises and alerts read chapter one of Nixon’s Nuclear Specter: The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War, co-authored by Jeffrey Kimball, Miami University professor emeritus, and William Burr, who directs the Archive’s Nuclear History Documentation Project. It’s also worth noting that the October 1969 nuclear crisis Costlow sites is in fact the aforementioned Madman alert, not a crisis.

Madmen, yes. Nuclear crisis, no.

Last year two bipartisan and uncontroversial FOIA bills died after being held up by Speaker John Boehner (R-Ohio); reporting by The Washington Post revealed that opposition to the bill by several key agencies – including the Justice Department – was the cause of the bills’ unceremonious defeat. The Freedom of the Press Foundation is now suing the Justice Department “for all correspondence the agency has had with Congress over proposed FOIA reform bills that died last year in Congress, despite having unanimous support of all its members.” FPF’s Trevor Timm notes, “What made the Justice Department’s reported actions particularly reprehensible was that the legislation’s language—and even more specifically, the precise part that the Justice Department was reportedly worried about—was based virtually word for word on the Justice Department’s own FOIA policy.”

A FOIA request filed by the New York Times shows that Defense Secretary Ashton Carter conducted government business over his personal email for months after it was revealed that Hillary Clinton relied on her personal email exclusively while secretary of state. Carter used an iPhone and iPad for messaging, and “a former aide to Mr. Carter said the defense secretary used the personal account so frequently that members of his staff feared he would be hacked and worried about his not following the rules.” Carter has acknowledged the use of personal email was “a mistake”, and, “As a result, he stopped such use of his personal email and further limited his use of email altogether.”

The National Security Archive requested assistance from the FOIA ombuds, OGIS, after the CIA informed us that our FOIA request for the agency’s CREST database of 11.6 million already declassified documents that are currently only available onsite at the National Archive’s College Park location in Maryland (about 250,000 pages are available on the CIA’s website) failed to “reasonably describe” the records we sought. The CIA took this unacceptable position even though it is currently processing an identical request for MuckRock and informed U.S. District Court Judge Ketanji Brown Jackson in 2015 that, in response to MuckRock’s FOIA lawsuit, it had developed a process to streamline the processing of MuckRock’s identical FOIA request. In the time it took OGIS to respond to our request for assistance (filed in September 2015), the Archive appealed the CIA’s adverse determination – only to have the CIA refuse to process our appeal. By the time OGIS did respond (December 2015), it said that it had looked into the matter but that “In cases such as this where an agency is firm in its position, there is little for OGIS to do beyond providing more information about the agency’s actions.”

Another OGIS response for assistance has gone past deadline. In October 2014, the National Security Archive joined a coalition of open government groups in asking OGIS to investigate agencies’ practice of sending “still interested” letters. These are letters that agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request.

OGIS informed our office in November 2014 that it would review agencies’ practice of sending still interested letters, and recently informed EPIC that its investigation into the matter won’t be finished until March 2016. According to OGIS director Jim Holzer, the OGIS compliance team has been hampered by agency reporting on the use of these letters. (If you have any feedback on the use of “still interested” letters, let OGIS know here in the comments section.) In the time it has taken OGIS to conduct its review – a seemingly straight-forward issue as there is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter[1] – the Department of Justice’s Office of Information Policy (OIP) has issued guidance condoning the legality of a practice that has no legal basis in the FOIA.

This February 1993 Presidential Review Directive discusses the policy options for the U.S. in pursuing a climate change treaty.

The recent Archive posting on the Clinton White House and Climate Change suggests a number of parallels with the Obama experience. Over the course of Clinton’s presidency, a laundry list of differences arose among key international constituencies. Questions ranged from how ambitious the targets for greenhouse gas (GHG) emission cuts should be, to the respective obligations of developing and developed countries, especially the roles of China and India. Battles with Congress over priorities and possible effects on the American economy and productivity further agitated the waters. Even before the landmark Kyoto talks of 1997, the administration found itself obliged to give up many of its “most cherished ideas” and to look instead for “fallback” options across the board, according to the documents. This is the second in a series of web compilations on United States policy toward climate change. The first compilation covered the Reagan and Bush 41 presidencies and appeared on December 2, 2015.

This week’s #tbt pick is chosen with the National Security Archive’s 30^th (!!!) birthday in mind, and is a throwback to our very first posting – way back in 1996 – on the US, China, and the bomb. Here’s to 30 more years of casting light on the government’s dubious secrets, fighting to strengthen the public’s right to know, and informing the debate on key US foreign policy decisions!

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Happy FOIA-ing!

[1] According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted.