“Need for Greater Leadership and Enforcement” Hampers FOIA Improvements: FRINFORMSUM 2/18/2016

The Obama administration is not fulfilling its commitments to improve FOIA or other open government benchmarks, according to a recent OpentheGovernment.org (OTG) report evaluating the administration’s Second National Action Plan commitments for the Open Government Partnership. OTG director Patrice McDermott notes, “the report highlights the shortcomings in the completion rate, lack of political mandate and follow-through, and need for greater focus on civil society/government collaboration.” The National Security Archive’s Nate Jones and the Project on Government Oversight’s Sean Moulton blame the limited FOIA progress on “the lack of a strong mandate, absence of political will, and need for greater leadership and enforcement mechanisms to encourage the full completion of the FOIA measures.” Jones and Moulton stress that the administration should implement more ambitious FOIA improvements, including promoting legislative reform that would codify the “presumption of openness” in FOIA, mandating that agencies update their FOIA regulations, and issue guidance to narrow the application of FOIA’s Exemption 5 to ensure the success of the administration’s FOIA commitments.

The CIA, in partnership with the National Geospatial Intelligence Agency (NGA), is making 750,000 pages of declassified intelligence documents available through its CIA Records Search Tool (CREST). According to the CIA press release, this release contains “nearly 100,000 pages of analytic intelligence publication files, and about 20,000 pages of research and development files from CIA’s Directorate of Science and Technology, among others”, and grows the CREST database to 13 million pages of declassified documents. The rub, however, is that the CIA refuses to post the full CREST database online out of a fear of the Mosaic Principle – the piecing together of documents to discern information the agency wants hidden, and researches interested in examining the documents must travel to the National Archives location in College Park, Md. to do so.

You need to travel out to NARA’s College Park MD location to read the full declassified CREST collection.

The CIA told a federal judge that responding to MuckRock’s FOIA request for electronic versions of all the documents in the CREST database would take six years. MuckRock user Michael Best, frustrated with the needless hurdles to access, has launched a KickStarter campaign to buy the equipment necessary to scan and upload all the documents online. The National Security Archive also filed a FOIA request for the database’s release. The CIA denied our request, we appealed (always appeal), and were informed by the CIA that it hadn’t extended us appeal rights and therefore our appeal was not processed. The Archive contacted OGIS for assistance in this matter, but were told “In such cases 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.”

A declassified National Security Agency inspector general report on the agency’s dragnet surveillance finds that the government receives less data from Americans’ international Internet communications than previously believed. Released thanks to a FOIA request filed by the New York Times, the IG report suggests “that the government supplies its foreign targets’ ‘selectors’ — like email addresses — to the network companies that operate the Internet, and they sift through the raw data for any messages containing them, turning over only those.” The ACLU’s Patrick Toomey, however, argues “that even if the companies were sifting the data themselves, the constitutional issues were the same if the companies were doing something they would not otherwise do at the government’s direction.”

DNI director James Clapper explained his reason for responding “untruthfully” to questions about the NSA by saying it was like being asked “when he was going to stop beating his wife.”

Director of National Intelligence James Clapper recently took to the agency’s tumblr to reiterate why he lied to Sen. Ron Wyden (D-Ore.) during a March 12, 2013, Senate Intelligence Committee hearing (Wyden asked Clapper if the NSA collected any type of data on millions of Americans, Clapper said “No, sir.”). Clapper reiterated a claim he’s made in the past – that we was thinking of another surveillance program; “I made a mistake.  But I did not lie.  There’s a big difference.” Clapper has alternately maintained that the response was “clearly erroneous” and the “least untruthful” answer he could give Senator Wyden. Wyden remained unconvinced, pointing out that he had given Clapper the question in advance, “and that Clapper had also ‘refused’ to correct the record afterwards.”

Senator Bernie Sanders (D-Vt.) slammed Hillary Clinton for her relationship with Henry Kissinger during this weekend’s Democratic debate. Open government advocates were quick to point out that Kissinger and Clinton both failed to appropriately maintain their records while secretary of state. Kissinger went so far as to take his telcons and other records from the State Department and the White House, in violation of federal records laws, and “deposited” them in the Library of Congress – preventing FOIA requesters access to them. The records only became available for declassification review and release after the National Security Archive threatened to sue the National Archives and the Department of State in 2001 for their failure to follow federal records laws by allowing Kissinger to keep under personal control record. Archivist Bill Burr’s called out Kissinger for removing his records in an attempt to evade the FOIA in his book “The Kissinger Transcripts,” a claim Kissinger called “canard”,  even though Justice John Paul Stevens found in the 1980 Reporter’s Committee for the Freedom of the Press Supreme Court case that avoiding FOIA appeared to be Kissinger’s motive.

Kissinger called the Archive’s Bill Burr “canard” for repeating that Kissinger “deposited” his records at the Library of Congress to avoid the FOIA.

Map from the CIA’s “Battle for Iran“, which contains what is believed to be the CIA’s first formal acknowledgement that the agency helped to plan and execute the coup.

Sanders, in an attempt to point out “that U.S.-imposed regime change often leads to unintended and undesirable consequences”, also brought up the U.S.-backed 1953 Iran coup and the overthrow of democratically-elected Iranian Prime Minister Mohammad Mosaddeq during the debate. This might have struck some debate viewers as old news, but the CIA only recently confirmed its role (in response to a FOIA request) in TPAJAX, the code name for the U.S.-led operation.

Senator Marco Rubio said Bill Clinton bore the responsibility for 9/11 in Saturday’s Republican debate because there were “four times” Clinton could have killed bin Laden and didn’t, citing the 9/11 Commission report to bolster his claim. While whether any of the missed opportunities to strike bin Laden would have been successful is up for debate, a 1999 Sandia National Lab report — obtained by the National Security Archive and first published in 2008 — argues that the August 20, 1998, cruise missile strikes against Al Qaeda bases in Afghanistan and Sudan in retaliation for the bombings of American embassies in Kenya and Tanzania did little to help solve the problem posed by bin Laden, and may ultimately prove to have done more harm than good. The Sandia Lab report also found that the risk of future attacks by bin Laden or his associates using WMDs is not insignificant, and that the “war” against terrorism will never be “won,” as terrorism will always be a global problem.

The Bad News from the Sandia report.

Supreme Court Justice Antonin Scalia died over the weekend during a hunting trip at a Texas ranch at the age of 79. Scalia was one of the most vocal opponents of the 1974 FOIA amendments, claiming it was unconstitutional and encouraging President Ford to veto it – which he did, only to have Congress override the veto. According to CIA documents, Scalia told the agency, which was against the bill, that if it “wanted to have any impact, [the agency] should move quickly to make [its] views known directly to the President.” Scalia even “telephoned the CIA on September 26, 1974 to urge direct contact with a particular White House staffer against the bill.”

Years later, in 1982, Scalia participated in a debate on FOIA and explained why he wanted to limit public access to government records. Scalia said, among other things, that “persons or corporations requesting information under the Freedom of Information Act should pay a larger proportion of the taxpayers’ cost of supplying it. I know of one horrible example in which a single request cost the government over $400,000. To say that the government’s files should not be kept secret from its citizens is not to say that the government should become the world’s largest free library reference service.” He also objected to anyone being able to file a FOIA, complaining “As a matter of fact, the present act does not require that the applicant for this information be a citizen. The applicant does not even have to be a resident alien. It may be a foreign corporation. It may even be Soviet intelligence – the KGB.”

The Security Council votes to extend the mandate of the UN Assistance Mission for Rwanda (UNAMIR) until 29 July 1994. Date: 05 April 1994. Courtesy of United Nations, New York Photo #286894.

This week’s #tbt pick is chosen with the recent death of former United Nations Secretary-General Boutros Boutros-Ghali in mind. This week’s pick is a collection of declassified 1994 reporting documents by key members of the United Nations Security Council during the Rwandan genocide that provide a narrative of the decision to withdraw UN peacekeepers from the country at the height of the killing. Documents show conflicting signals from Secretary-General Boutros Boutros-Ghali; on April 13 he informed his aides that “UNAMIR will have to be withdrawn” in light of a decision by the Belgian government to pull out its peacekeepers. The following day, he changed his position, and suggested that UNAMIR should stay on without the Belgians. On May 2, according to a cable from UNSC President Keating, he “sprang a surprise” and proposed that the Council authorize “more forceful action to restore order in Rwanda.”

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Happy FOIA-ing!