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9th Circuit Finds FBI Can Withhold Information on Surveillance of Muslim Communities: FRINFORMSUM: 2/8/2017

February 8, 2018

9th Circuit Finds FBI Can Withhold Information on Surveillance of Muslim Communities

The Ninth Circuit Court ruled last week that the FBI does not have to release thousands of pages of documents in response to a FOIA lawsuit for information on the Bureau’s surveillance of Muslim communities. During the course of the FOIA lawsuit for information on surveillance of Bay area Muslim communities, the Bureau alleged that nearly 48,000 pages of documents were exempt from release to the American Civil Liberties Union, Asian Law Caucus, and the San Francisco Bay Guardian, pursuant to the FOIA’s exemption 7, which covers law enforcement records and information.

District Judge Richard Seeborg ruled in 2015 that the FBI could not withhold training manuals and guidelines under Exemption 7 because, “Exemption 7 only applies to documents that are related to a specific investigation or enforcement of a particular law.”

The Ninth Circuit disagreed with and rescinded Seeborg’s ruling, “finding that general documents related to a legitimate law enforcement activity can still be withheld under Exemption 7 in certain circumstances.” The judges “remanded the case for further analysis to determine if disclosing the records ‘would cause any of the specific harms’ identified in six subsections of FOIA Exemption 7.”

OSTP Calendars Show Director Candidates Have Been Interviewed, But Position Remains Vacant

A FOIA request for the calendars of the White House Office of Science and Technology Policy’s only political appointee, Michael Kratsios, shows that he had interviewed at least three people to lead the office by October 20, 2017. The names of the candidates were withheld to protect personal privacy, but the calendar shows that aides to Vice President Pence sat in on at least two of the interviews. The directorship of the agency that advises the president on a wide range of science and technology issues, however, remains vacant.

Video of FCC Chairman Pai Joking About Being A Verizon “Puppet” at Agency Event Hidden by B5

The Federal Communications Commission claims that releasing a video of chairman Ajit Pai joking with a Verizon executive about being the company’s “puppet” for a video shown to a gathering of the Federal Communications Bar Association on December 8, 2017, would injure the “quality of agency decisions” and therefore must be withheld under the FOIA’s “withhold it because you want to” Exemption 5. (The video is also available online, making the decision to withhold the video, as well as information on how it was produced, more untenable.) The video was shown at the annual event while the agency was facing wide-ranging criticism for reversing net-neutrality rules.

Exemption 5 is not designed to protect agency employees from embarrassment or because “errors and failures might be revealed, or because of speculative or abstract fears;” it is also discretionary and should take public interest into account. The Archive’s Nate Jones told Gizmodo that, “even if this is a legally valid withholding by the FCC, it is not acting in the public’s interest to hide this information.”

Tet Offensive Documents to Be Declassified Beginning July 2018

The Office of the Director of National Intelligence recently announced that director Coats, to commemorate the 50th anniversary of the Vietnam War’s Tet Offensive, directed the Intelligence Community “to review their holdings to reveal previously classified details to the public.” The move comes a year after former ODNI head James Clapper “instructed the Intelligence Community Senior Historians Panel to identify topics of historical interest for declassification and release, as a part of the IC’s continuing efforts to enhance public understanding of IC activities.” The Tet Offensive release is the first effort in this initiative. The documents will begin being released in July of this year, and will be released over a period of 15 months.

For interested scholars and researchers, the Archive’s Vietnam Project has a number of declassified documents on the Offensive.

Ethics Training for White House Staff to Not Use Encrypted Messages for Official Business

The Washington Post reports that, during a mandatory ethics training, White House lawyers reminded “President Trump’s staff not to use encrypted messaging apps for official government business as the administration seeks to dismiss a lawsuit accusing it of violating federal records laws.” The lawsuit in question is brought by Citizens for Responsibility and Ethics in Washington (CREW) and the Archive, and argues that White House officials reported use of encrypted and disappearing messaging acts, like Confide, violates the Presidential Records Act.

Slate Honorable Mention for Able Archer 83 Project

Congratulations to the Archive’s Able Archer 83 Project and its director, Nate Jones, whose article – co-authored with J. Peter Scoblic – was highlighted for an honorable mention for Slate’s most popular stories of 2017. The article, The Week the World Almost Ended, examines how in 1983, the NATO war game Able Archer 83 simulated a US nuclear war with Russia—and only narrowly avoided starting a real one. More fascinating resources on the War Scare can be found on the Archive’s website.

DC Open Gov Watchdog Canned with No Explanation

The District of Columbia’s mayor-appointed Board of Ethics and Government Accountability recently voted not to renew the second, five-year term of the District’s Open Government director, Traci Hughes, who is in charge of “policing District agencies’ compliance with the Open Meetings Act and Freedom of Information Act.” The decision was made in a closed meeting and no statement was issued. The office – with a staff of three that had to rely on pro bono counsel – sued the “Mayor’s Advisory Commission on Caribbean Community Affairs over its refusal to comply with open-meeting laws” and a judge ruled the commission had to follow Hughes’ recommendations. Hughes also recently ruled that the District’s only public hospital, United Medical Center, recently “violated the law when it held a secret vote to close the facility’s obstetrics ward — a decision that left Southeast Washington without a hospital for women to give birth or seek prenatal care.”

Cyber Brief: Cybersecurity and Deterrence

This week’s new Cyber Brief items are chosen with the January 2018 publication of a draft of the Trump administration’s Nuclear Posture Review (NPR), which has raised questions about modern concepts of deterrence and the potential link between cyber and nuclear weapons, in mind.  This week’s posting provides both the draft and final versions of the NPR, and for context adds a number of related studies on deterrence in the current cyber environment. The draft suggests that a cyberattack specifically on U.S. nuclear command, control, and communications (NC3) could warrant a nuclear retaliation – a notion not as plainly expressed in the final document.

TBT Pick – Richard Leghorn, “Political Action and Satellite Reconnaissance” 

Richard S. Leghorn, one of the fathers of strategic aerial and satellite reconnaissance, died January 15. A Boston Globe obituary notes that when Leghorn photographed the atomic bombing of Bikini Atoll – taking 4 million pictures – it convinced him that “we couldn’t have another war.” Leghorn appears in a number of postings in the Archive’s Intelligence Project, including a 2007 posting on US Satellite Reconnaissance between 1958 and 1976. An April 24, 1959, memo featured in the posting and authored by Leghorn, then the head of the Itek Corporation –  the contractor that developed the reconnaissance camera for the CORONA system – addresses the issue of the possible political vulnerability of U.S. reconnaissance satellite programs. Leghorn argues that the “espionage” context in which U.S. programs were viewed – a result of the secrecy attached to the programs – is the “worst possible” context from the standpoint of political vulnerability and suggests the need for an “imaginative political action program” as a means of reducing the program’s political vulnerability.

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