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Reporter Carol Rosenberg’s FOIA Request Changes Course of al-Nashiri Trial: FRINFORMSUM 4/19/2019

April 19, 2019

FOIA Request Shows Al-Nashiri Trial Judge Secretly Sought DOJ Position  

In a remarkable turn of events, the Court of Appeals for the D.C. Circuit “threw out every single pre-trial order issued over the past three-and-a-half years in the case of Abd Al-Rahim Hussein Muhammed Al-Nashiri,” the alleged USS Cole bomber currently being tried by a military commission at Guantanamo. Steve Vladeck has a superb write-up of the unanimous ruling (that also includes every single order on appeal), which comes after the disclosure that the former trial judge presiding over the al-Nashiri case, Air Force Colonel Vance Spath, was applying for -and negotiating the terms of- a position with the Justice Department as an immigration court judge. He kept his job application secret from all parties, a gamble that could call into question Spath’s partiality. Vladeck notes that a FOIA request filed by reporter Carol Rosenberg “turned up the very documents pertaining to Spath’s candidacy for a position as an immigration judge that the government had refused to disclose” and led to this week’s ruling.

The National Security Archive filed a FOIA lawsuit for CIA director Gina Haspel’s torture cables, which describe graphic acts of deliberate physical torture -including the waterboarding of al-Nashiri- when she was chief of base at a CIA black site in Thailand in 2002. Although the CIA redacted Haspel’s name and those of the CIA contract psychologists James Mitchell and Bruce Jessen who administered the waterboard from the release, other declassified documents (including the 2004 CIA Inspector General report) and public statements confirm their leadership of the torture of alleged terrorist Abd al Rahim al-Nashiri at the black site between November 15 and December 4, 2002.

Exemption 4 Case Heads to SCOTUS

The Supreme Court will hear oral arguments in the case of Food Marketing Institute v. Argus Leader Media this Monday. The case, which Argus Leader outlines here, concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP) and has potentially wide implications for FOIA’s Exemption 4. National Security Counselors’ Kel McClanahan says, “A ruling for the requester would mean nothing more than a continuation of the status quo, where business information can only be withheld under Exemption (b)(4) upon a showing of competitive harm. But a ruling against the requester would turn Exemption (b)(4) into some sort of super-exemption, where the mere fact that business information had not previously been made public would suffice to withhold it.”

The Department of Justice recently filed an amicus brief in support of an expansive interpretation of the exemption.

Redactions: The Declassified File – Mueller Report Censorship Raises Question: What’s the Government Hiding?

This Joint Staff memo concerns a revised National Security Decision Directive​ on U.S. strategy toward the Soviet Union. The version on the left was released in 2016 but contains heavy redactions that reviewers did not consider necessary in 2010 when they declassified the version on the right in full.

The release of the redacted Mueller report focuses new public attention on the systemic problem of over-classification and the routine overuse of exemptions to the Freedom of Information Act that are supposed to be reserved for protecting true secrets. To provide background to the problem, the National Security Archive posted just a small selection from the hundreds of “dubious secrets” it has published over the years in which U.S. government censors blacked out documents that had already been released in full or redacted entirely different parts of the same document at different times. The examples show how subjective the classification process is and how often agency declassifiers opt for the most sweeping rulings that wind up denying any reasonable access to U.S. government information.

Much of the Mueller report was redacted with the justification that release would cause “Harm to Ongoing Matter,” which refers to ongoing trials and investigations, like that against Roger Stone. The bright side of this justification is that once these cases are completed, those redactions should be easily stripped back.

Nuclear Stockpile Information Censored by Pentagon for 1st Time in Years

The Pentagon is denying a request to declassify the current size of the US nuclear stockpile, despite having released the information to the Federation of American Scientists on an annual basis since 2010 – and without any harm to national security as a result. Steve Aftergood reports, “Because the current size of the U.S. nuclear stockpile constitutes so-called ‘Formerly Restricted Data,’ which is a classification category under the Atomic Energy Act, its declassification requires the concurrence of both the Department of Energy and the Department of Defense. In this case, DOE did not object to declassification but DOD did.” The DOD gave no rationale for denying the release, but one official “said the problem was that one of the main purposes of the move to declassify the stockpile total — namely, to set an example of disclosure that other countries would follow — had not been reciprocated as hoped.”

Hans M. Kristensen, director of FAS’ Nuclear Information Project, says, “The decision walks back nearly a decade of U.S. nuclear weapons transparency policy.”

NYPD Accidentally Releases Documents on Facial Recognition Technology

A judge is ordering a FOIA requester to return 20 pages of documents on the NYPD’s facial recognition technology the police say they accidentally released.  The order, which said the agency “should be more diligent,” is the latest development in a two-year FOIA suit brought by the Georgetown Center on Privacy and Technology and that has already revealed “that anyone arrested by the NYPD is potentially subject to face recognition searches.”

The NYPD initially told researchers that they couldn’t find any responsive records to their request, but has now, two years and a lawsuit later, released nearly 4,000 pages of records. Also during the course of the suit, “The NYPD delivered a Powerpoint presentation on the department’s Facial Identification Section to people who paid $1,695 to attend a conference in Sept. 2018 — but then claimed the same information was too sensitive to disclose through the lawsuit.”

FOIA Request Sheds Light on Smollett Investigation  

A FOIA request from the Chicago Tribune won the release of thousands of texts and emails (but not internal files) from the Cook County State’s Attorney’s office on the investigation into Empire actor Jussie Smollett, who “had been indicted on 16 counts of disorderly conduct on charges he staged a hate crime attack on himself.” The majority of the documents don’t discuss the substance of the case or the decision to dismiss the charges against Smollett, “But they show that the office was largely caught flat-footed by the massive response from the news media to its own stunning reversal.” Assistant State’s Attorney and the lead prosecutor in the case, Risa Lanier, texted shortly after the charges were dropped, “Just wish I could have anticipated the magnitude of this response and planned a bit better!”

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