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Kavanaugh Instrumental in Bad FOIA Ruling, Secrecy System Unsustainable, and Much More: FRINFORMSUM 7/12/2018

July 12, 2018

#TBT Pick – Kavanaugh Ruling Helped CIA Conceal Bay of Pigs History

This week’s #TBT pick is chosen with the recent nomination of Judge Brett Kavanaugh for Supreme Court Justice in mind. Kavanaugh authored the 2014 ruling in the National Security Archive’s prolonged FOIA lawsuit against the CIA that kept the agency’s 1984 Bay of Pigs Volume V history secret.  Kavanaugh, in a 2-1 ruling, agreed with the CIA and DOJ lawyers that the document was a “draft” and its release would “expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Archive Director Tom Blanton said at the time, “Presidents only get 12 years after they leave office to withhold their deliberations, and the Federal Reserve Board releases its verbatim transcripts after five years. But here the D.C. Circuit has given the CIA’s historical office immortality for its drafts, because, as the CIA argues, those drafts might ‘confuse the public.'”

Congress disagreed with the court’s overly-broad interpretation of the “deliberative process” privilege, and the FOIA was amended two years later to prevent agencies from hiding documents older than 25 years behind exemption five. Thanks to the change in the law, the Archive won the release of the volume in 2016.

Read more about the case here and read the volume here.

National Security Classification System Unsustainable

“We can and must reduce costs and increase efficiency by using digital technology to replace existing analog and paper-based operations. Our system keeps expanding, but remains hamstrung by old practices and outdated technology. We are at a crossroads.” This is according to the Information Security Oversight Office’s newly-released report to the president, highlighted by Steve Aftergood, which is a sobering assessment of the aging and unwieldy secrecy bureaucracy.

Key recommendations from the report include:

  • Using modern technology in security classification programs;
  • Implementing a budget line item that would require agencies to justify security classification expenditures; and
  • Adding a member of the public to the Interagency Security Classification Appeals Panel.

The National Geospatial Intelligence Agency wins special praise in the report for its best practice policy of requiring “written justifications for original classification decisions, along with a description of the damage that would result from unauthorized disclosure, and an unclassified paraphrase of the classified information.”

Also of note is the percentage of classification challenges presented by government employees that are upheld by the government – eight percent were upheld across the government. Aftergood notes, “Because the challenges are now mostly localized in just a few agencies, this practice has the potential to have far more impact in combating overclassification if it can be adopted and encouraged more widely across the executive branch.”

Jones’ Bill Would Circumvent FOIA to Declassify Civil Rights Cold Cases

Senator Doug Jones (D-Ala.) introduced a bill, the  Civil Rights Cold Case Records Collection Act of 2018, that would “create a panel to systematically review, declassify, and release government documents and information related to unsolved criminal civil rights cases from decades ago.” Jones argues that the bill would help shed light on important cases that agencies are too slow to release through FOIA; specifically, Jones says the legislation is needed because “the Freedom of Information Act (FOIA), as implemented, has prevented the timely and adequate disclosure of executive branch records, and congressional records are not subject to public disclosure under FOIA. In addition, some of these records, although almost 50 years old, remain classified unnecessarily or shielded from public view.”

In Brief – FOIAonline Takes a Turn for the Worse

The redesigned FOIAonline is … not good. The site has lost much of its functionality and is no longer mobile friendly. The Reporters Committee’s Adam Marshall has a good hot take here.

FOIA Plays Key Role In Pruitt Downfall – “The FOIAs have been 99.9 percent of it”

Environmental Protection Agency whistleblower Kevin Chmielewski was a key figure in the ouster of disgraced former agency head Scott Pruitt. Chmielewski, who was the EPA’s deputy chief of operations, leaked documents and provided fodder and guidance for FOIA requests, responses to which were critical in turning the tide against Pruitt.  “I’ve put the breadcrumbs where they had to go and pointed to the FOIAs — the FOIAs have been 99.9 percent of it,” Chmielewski said. “They’ve all come back, and in a lot of cases they were worse than I even knew about.” He called the FOIA releases the “silent hero” behind Pruitt stepping down.

Updates to the President’s Daily Brief Under Trump

Government Attic obtained records from the Office of the Director of National Intelligence under FOIA concerning new guidelines for the President’s Daily Brief for President Trump. One of the few unredacted portions of the records instructs the compilers to please limit the use of acronyms. It’s unclear if the president reads the briefs; the Washington Post reported in February of this year that the President has broken with the tradition of reading the highly sensitive document himself, and instead relies on oral briefings of the PDB.

Trump might actually not be the only president not to read the document. A 2016 Archive posting shows that President Richard Nixon may never have even read the President’s Daily Briefs, relying instead on cover memos written by national security adviser Henry Kissinger.

More on past presidents’ relationships with the document can be found on the National Security Archive’s website.

Cyber Brief: Transportation Security

This week the National Security Archive’s Cyber Vault brief focuses on the cyber threat to critical infrastructure (communication, transportation, energy, finance, and vital services), which receives a sizeable volume of attention from researchers and policy analysts. This week’s Cyber Brief collection of more than a dozen pertinent documents collectively examines transportation security in isolation beginning with President Clinton’s Executive Order 13010 and continuing through recent Federal reports on emerging challenges and technologies.

Presidential Control of Nuclear Weapons: The “Football”

Online blustering about nuclear “buttons” has brought new attention to the issue of presidential control over nuclear weapons, and to the special satchel or “Football” of emergency and nuclear planning information carried by White House military aides when the President is traveling. Declassified documents recently published by the National Security Archive describe the Eisenhower, Kennedy and Johnson arrangements for the “Football”; and the posting includes newly discovered White House photographs of six recent Presidents with military aides and Football nearby.

New Testimony Alleges that Former Colombian President’s Ranch Was Paramilitary Base

A ranch owned by former Colombian president Álvaro Uribe Vélez and other members of his family was the operational base of a deadly paramilitary group, according to the testimony of people who worked for the Uribe family in the 1990s. The new evidence, which was reviewed by the National Security Archive, is the subject of an investigation published this week in The New York Times featuring commentary from Michael Evans, director of the Archive’s Colombia documentation project.

Learn more about the declassified record on Uribe from our Colombia project.

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