Privacy Oversight Chair Steps Down Two Years Early, ODNI Adamant Intel Sharing Plan Doesn’t Violate 4th Amendment, and More: FRINFORMSUM 3/31/2016

David Medine
Chairman, Privacy and Civil Liberties Oversight Board. Government photo.

David Medine, chairman of the Privacy and Civil Liberties Oversight Board (PCLOB) – an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties – is stepping down two years before the end of his contract for a position in the private sector. PCLOB has made a number of important contributions to the surveillance debate, including last year publishing a chart “on how U.S. intelligence agencies use a Reagan-era executive order [12333] to collect Americans’ private information,” that shows most agency guidelines are woefully outdated. “Most agencies have not revisited their handling of data collection since the early 2000s, and in some cases not since the 1980s.” A 2014 PCLOB report found that the National Security Agency’s (NSA) surveillance of foreign communications is lawful, but that elements of Section 702 come “close to the line” of being unconstitutional.

The Washington Post’s Ellen Nakashima reported in June 2015 that Republicans on the House Intelligence Committee advanced a provision to the 2016 intelligence authorization bill that would block PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by Medine arguing that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

Director of National Intelligence (ODNI) James Clapper recently responded to a March 21 letter from Representatives Ted Lieu (D-Calif.) and Blake Farenthold (R-Texas), which voiced concerns that a proposed intelligence sharing plan would “violate Fourth Amendment privacy protections because the collected data would not require a warrant before being searched for domestic law enforcement purposes.” Clapper assured the representatives that the NSA’s plan of sharing “unevaluated signals intelligence” with other agencies would be lawful and not violate privacy rights of US citizens.

ODNI General Counsel, Robert S. Litt.

ODNI General Counsel Bob Litt built on Clapper’s arguments in a recent article for Just Security. Litt says the proposed changes do “not authorize any additional collection of anyone’s communications, but will only provide a framework for the sharing of lawfully collected signals intelligence information between elements of the Intelligence Community. Critically, they will authorize sharing only with elements of the Intelligence Community, and only for authorized foreign intelligence and counterintelligence purposes; they will not authorize sharing for law enforcement purposes.”

Steve Aftergood reports that the Obama administration has begun its second Fundamental Classification Guidance Review “in an effort to eliminate obsolete classification requirements and to reduce national security secrecy.” The first review, which took place from 2010-2012, reduced the DOD’s non-compartmented security classification guides by 20%. Aftergood notes that environmental changes, congressional disclosures, FOIA requests, and leaks can all make even good classification guidance obsolete; “Faced with this growing disconnect between a realistic threat appraisal and the information security response, the Fundamental Classification Guidance Review represents the secrecy system’s own attempt at self-correction.”

How do you prevent a cyber “Pearl Harbor”? This is the question former NSA head Keith Alexander left open-ended in a 2012 document, in which he noted “Adversaries are only 12-18 months away from having the capability to conduct a cyber Pearl Harbor against the U.S.” This intriguing record is just one of many available in the National Security Archive’s newly-launched Cyber Vault, an online resource documenting various aspects of US government cyber activity, including hacking and defenses against hacking, cyber intelligence, and cyberwar.

Another gem from the Vault is an October 2011 report authored by the National Counterintelligence Executive on Foreign Spies Stealing US Economic Secrets in Cyberspace. This report, produced by an ODNI component, consists of three major sections. One is the vulnerability of US technologies and trade secrets to cyberspace operations and the appeal of cyberspace collection. Another examines the threat from specific collectors, including Russia, China, and US partners. The third provides an outlook for the future, divided between sections on “near certainties” and “possible game changers.”

Directed by Jeffrey T. Richelson, an international expert and widely published author on intelligence and national security issues, the Cyber Vault project will add to its holdings on a regular basis. All materials will be fully searchable and permanently stored on the project site.

The FBI submitted a classified declaration to a federal judge in connection with a Vice News FOIA lawsuit for records concerning Hillary Clinton’s email that addresses, among other things, why the bureau can’t reveal any details about its investigation into Clinton’s email usage. The FBI’s FOIA chief, David Hardy, submitted a separate public declaration noting that, while the FBI has a number of exchanges with the State Department concerning Clinton’s email and server arrangement, any release would adversely affect the FBI’s investigation. The FBI also requested that the court dismiss Vice’s lawsuit “on grounds that the documents it does have about Clinton’s private email server are located in files pertaining to a pending investigation that is exempt from disclosure because their release would interfere with active law enforcement proceedings.”

The FBI currently has dozens of personnel working on the investigation, which The Washington Post reports has accelerated in recent months to “avoid the possibility of announcing any action too close to the election.”

The Post also notes Judge Emmet G. Sullivan’s growing frustration with the State Department’s response to a separate FOIA lawsuit for records related to Clinton in a long and worthwhile read on the evolution of the email fiasco. In February Sullivan allowed Judicial Watch to pursue discovery of Clinton’s aides regarding her email use after finding that there was “reasonable suspicion” that Clinton and her aides tried to evade FOIA; discovery is an uncommon practice in FOIA lawsuits, but one that can include legal depositions. Sullivan said, “We’re talking about a Cabinet-level official who was accommodated by the government for reasons unknown to the public. And I think that’s a fair statement: For reasons heretofore unknown to the public. And all the public can do is speculate,” going on to say “This is all about the public’s right to know.”

U.S. District Court Judge Royce Lamberth followed Judge Sullivan’s example and this week granted Judicial Watch discovery in another suit in pursuit of “details about how Hillary Clinton’s private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.” Lamberth cited the government’s wrongdoing and bad faith in his ruling, and chastised the “constantly shifting admissions by the Government and the former government officials.”

Radovan Karadžić (left) with former Bosnian Serb military leader Ratko Mladić, who is currently on trial before the ICTY. AP photo.

Radovan Karadžić, the former President of Republika Srpska (RS) and Supreme Commander of its armed forces, was recently convicted of genocide, crimes against humanity, and violations of the law of war by the International Criminal Tribunal for the former Yugoslavia (ICTY). The National Security Archive’s Genocide Documentation Project worked tirelessly for three years to assemble a cohesive collection of declassified documents to map the atrocities committed in Srebrenica, Bosnia and Herzegovina in July 1995. Now 70 years old, Karadžić was sentenced to 40 years’ imprisonment for the war crimes committed by the Serb forces he led in the conflict in Bosnia from 1992 to 1995.

When asked how dozens of trips in a Pentagon-provided car service to and from restaurants helped accomplish the Defense Intelligence Agency’s (DIA) mission, former DIA deputy director David Shedd explained to the Defense Department inspector general that “the food at the DIA cafeteria was poor.” The DOD IG report – obtained by The Washington Post under the FOIA – found Shedd abused a Pentagon vehicle service to the point it “could be characterized as a personal limousine service based solely on reasons of rank, position, prestige or personal convenience.” Shedd, a career-CIA officer who was hired by the DIA to improve its human intelligence capabilities, brushed the report off as “an IG run amok.”

This week’s #tbt pick is a December 2000 memo obtained and published by the Archive that shows the NSA has been pushing to “rethink and reapply” its application of the Fourth Amendment since before 9/11. This was necessary, it argued, to attain a “powerful, permanent presence on a global telecommunications network.”

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!