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CIA Overclassification Jeopardizes Hmong Veterans’ Fight for Military Burial

July 20, 2017

CIA Overclassification Jeopardizes Hmong Veterans’ Fight for Military Burial

Journalist James Eli Shiffer has a must-read piece in the Minneapolis StarTribune on Hmong veterans who fought for the United States during the Vietnam War and are currently fighting for the right to be buried with “military honors in a national cemetery.” But the CIA is refusing to declassify documents about the Agency’s proxy secret army, “or even acknowledge that they exist” – and, in the process, denying Hmong veterans the paperwork they need to be buried with military honors.

The CIA’s official history on CIA and Surrogate Warfare in Laos, published in redacted form in 2009, admits that it commanded many Hmong soldiers to fight in Vietnam, yet the CIA continues to Glomar – neither confirm nor deny – FOIA requesters seeking the names of those on the agency payroll, arguing it would endanger sources and methods.

Shiffer notes that this indignity towards “thousands of other Lao and Hmong veterans demonstrates a human cost of the runaway system of classification that perpetuates federal secrecy.” (Shiffer also has a good companion article with Matt DeLong on “What you need to know about how government secrets are made.”)

U.S. Rep. Tim Walz said of the CIA’s decision, “How in the hell is our safety at stake by trying to release those names or at least telling us they don’t have them?”

Even though a 2009 Executive Order says no official secret can remain classified forever – and even though the existence of the Hmong soldiers has already been declassified by the Agency – National Security Archive director Tom Blanton says in practice, “All it takes is one person at CIA to say, ‘Wait a second, that Hmong army, that was a covert operation.’”

The end result is the Hmong veterans are left in limbo. “A box of records might exist, perhaps in the CIA headquarters or the vast warehouse of the National Archives, that, once opened, could document what everyone already knows to be true.”

Shiffer’s article also gives a good summary of the issues facing the National Declassification Center. Of the multiple agency page-by-page equity reviews of the historical records housed at the NDC, director Sheryl Shenberger says, “Sometimes seriously it is literally one paragraph that’s stopping 80 pages from being released.”

FCC Incorrectly Says Reviewing Net Neutrality Complaints in Response to FOIA “Too Burdensome”

Of overturning net neutrality rules, Federal Communications Chairman Ajit Pai has said that “net neutrality rules were a response to ‘hypothetical harms and hysterical prophecies of doom’ and that there was no real problem to solve.”

The National Hispanic Council argues that the release of the 47,000 complaints at issue in their FOIA request will likely contradict these assertions. But the FCC is stonewalling their release, saying that reviewing the more than 40,000 complaints about overturning net neutrality rules it has received since June 2015 would be “too burdensome.”

The FCC’s claim that reviewing the 47,000 complaints would be unreasonably burdensome is wrong. The Justice Department’s own guidance makes clear that reviewing a large number of records does not, in and of itself, make a request burdensome. The key issue is whether or not the requester has worded the FOIA request to enable the FOIA officer to easily determine what records are sought. In this instance, the FOIA requester has done precisely that.

Case law also supports the requester’s right to ask an agency to conduct a time-consuming search provided the records are well-defined. In Shapiro v. Cent. Intelligence Agency, 170 F. Supp. 3d 147, 154 (D.D.C. 2016), the court found, “Regardless of how onerous it might be to locate them, there can be no dispute about which items are being requested.”

White House Military Office Paying $130,000 a Month for Trump Tower Lease

A FOIA request filed by the Wall Street Journal and released by the General Services Administration shows that the White House Military Office – which provides military support for White House functions and is charged with carrying the “nuclear football” –  took out a $2.39 million lease to rent a unit in Trump Tower from April 11, 2017, to September 30, 2018. This figure does not include the money Secret Service, which is a component of the Department of Homeland Security, spends protecting the president’s property (the agency’s 2018 budget requests an additional $25.7 million to secure the tower.)

Trump, perhaps unaware of the expense irrespective of his presence at his New York home, has not visited the tower since inauguration, repeatedly citing cost as the reason; “Going back is very expensive for the country.”

Mar-a-Lago Records to be Released in September

The Department of Homeland Security will release the visitor logs for President Trump’s Mar-a-Lago resort by September 8, according to a court order filed on July 14, 2017, by federal judge Katherine Polk Failla.

The order is in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).

The government has until the end of September 2017 to file declarations concerning the White House visitor logs; DHS claims there are no such records for Trump Tower since the President did not visit the property during the time period covered by the request.

Access to the Obama visitor logs helped break a number of news stories, including on the influence of lobbyists. One story revealed that then-CEO of Exxon, Rex Tillerson, visited the Obama White House at least 20 times in 2014 to advocate against Russia sanctions. In another example, the logs raised questions about the clout of high tech firms, particularly Google, in the Obama administration; one article on “Google’s Remarkably Close Relationship With the Obama White House” showed that Google lobbyist Johanna Shelton visited the White House no fewer than 128 times, far more than her peers from other tech companies, and that “Between January 2009 and October 2015, Google staffers gathered at the White House on 427 separate occasions.”

CIA Files at Risk

The CIA is positioned to begin destroying a large number of potentially important documents, including classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.”

As reported in the Daily Beast, the National Archives has tentatively approved a CIA records retention schedule to destroy information that is more than 30 years old. In addition to the files listed above, the Agency is also attempting to destroy files related to CIA investigations into alleged unauthorized releases of classified information (which the Agency is attempting to change from a permanent to temporary designation).

The National Security Archive, with OpenTheGovernment, Defending Rights & Dissent, and Demand Progress submitted comments to NARA acting director of records appraisal and agency assistant, Margaret Hawkens, requesting her agency do just that, and “reconsider its pending approval of the CIA’s proposed schedule, N1- 263-13-1, until NARA can better assure the public that records of permanent historic value will not be allowed to be destroyed by the CIA.”

A by-no-means-thorough list of the CIA’s destruction of records includes:

This also isn’t the first time the CIA has submitted records management and records schedule plans that ring alarm bells. In 2016 the Agency – after public outcry – was forced to withdraw its plan to destroy agency emails of all except its top 22 employees.

FOIA Federal Advisory Committee

The FOIA federal advisory committee met today (video available here, transcript to be posted in 30 days), with a presentation by National Archives chief records officer Laurence Brewer and updates from the three subcommittees. Of note in today’s meeting was committee members expressing concern that the Office of Management and Budget has yet to act on the recommendation that it update its outdated (from 1987!) FOIA fee guidelines to all agencies on when and how they can charge fees, which is also missing a key word.

$350,000 FOIA Settlement to National Security Archive Spurred CIA IG Investigation

blistering 2008 Central Intelligence Agency legal settlement of $350,000 to the National Security Archive’s pro bono lawyers, paid after losing a Freedom of Information Act case, led to the opening of an Inspector General investigation to review whether the CIA violated “policy and federal law” with respect to the FOIA.

The IG report, released in response to a FOIA request filed by Jason Leopold, reviews an anonymous allegation by a CIA employee of FOIA “missteps” at the Agency.  The IG report investigated how the Agency treated National Security Archive FOIA requests, including multiple reversals –some “on its own initiative” and some “reversed by the court several times” on whether the Archive should be treated as a news media organization, and pay fewer FOIA fees.  This CIA FOIA mismanagement caused the CIA “great confusion,” a large settlement bill, and a tongue lashing by DC District Judge Gladys Kessler.

Mellon Foundation Helps Stand Up Email Preservation Task Force

The Andrew W. Mellon Foundation is helping stand up an international task force to develop a framework to address challenges preserving email, a subject near and dear to the National Security Archive. The Foundation has also produced a short video – drawing on Archive resources – to demonstrate how email preservation was critical in allowing historians understand the Iran-Contra Affair, “one of history’s first scandals involving electronic correspondence.” Despite its importance, as Kristen Ratanatharathorn notes, “rigorous cataloguing of email communication remains the exception, not the rule. Instead, those trying to understand the recent historical record are, too often, left feeling the way many of us do with our personal inboxes: searching in vain for that one elusive message.”

Contact information for those interested in getting involved in the task force can be found here.

TBT Pick – Israel Crosses the Threshold II

Today’s #tbt pick is a 2014 posting from our Nuclear Vault on the Nixon administration debates during the emergence of the Israeli Nuclear Program.  Included are documents on the DOD’s Paul Warnke warning in early 1969 that the Israeli Nuclear Program is “the single most dangerous phenomenon in an area dangerous enough without nuclear weapons.”

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Happy FOIA-ing!

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