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White House Secrecy “Will Blast a Huge Crater in the Work of Historians”: FRINFORMSUM 5/16/2019

May 16, 2019

Archive Joins Diplomatic Historians and CREW in Lawsuit Asking Court Review WH Failure to Document Meetings.

Trump’s Secrecy will “Blast a Huge Crater” in work of Historians if not Checked

The Washington Post Editorial Board weighed in on the National Security Archive’s lawsuit against the Trump administration for failing to document meetings with heads of state, noting “The failure to document these meetings is not only about compliance with the law. Mr. Trump’s secrecy deprives his own advisers of knowledge about what is going on and thus harms their ability to give him good advice. It will blast a huge crater in the work of historians who attempt to piece together what transpired in Mr. Trump’s presidency. It also deprives the American people of a basic method of holding Mr. Trump accountable for his performance.

The Archive, which has obtained and published thousands of “memoranda of conversation” of heads of state meetings dating back to President Eisenhower through the FOIA, together with Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR), filed suit to compel the White House to create and preserve records of the President’s meetings with foreign leaders. News organizations have reported that in multiple meetings with foreign heads of state, the Trump administration has excluded note takers from the conversations.  For example, The New York Times on January 15, 2019 headlined “Trump and Putin Have Met Five Times, What Was Said Is a Mystery.” The Associated Press reported on February 27, 2019, “Trump-Kim go one-on-one: Who will know what was really said?” The suit asks the federal district court for mandamus and declaratory relief to compel the White House to create and preserve records of presidential meetings with foreign leaders, as required by the Presidential Records Act.

Judge Rules DOJ Must Release Names of Companies Cleared from NSL Gag Orders

U.S. District Judge Vince Chhabria ruled this week that the Department of Justice “must unmask the names of companies cleared to disclose details of the FBI’s warrantless demands for customers’ private information.” Chhabria rejected the government’s argument that disclosing the names of companies freed from gag orders accompanied by National Security Letters (NSLs) they’d received would harm national security. The suit was brought by the Electronic Frontier Foundation, which sought the information in a FOIA request.

The ruling comes on the heels of a lawsuit, Barr v. Redacted, challenging the FBI’s authority to issue NSLs without any judicial oversight and under indefinite gag orders. The National Security Archive, along with 15 other media organizations, filed a “friend of the court” brief for this suit, arguing  courts have put time limits on secrecy before, both by ordering the government to justify the continued necessity of a nondisclosure provision on an ongoing basis, and requiring a triennial judicial review for a nondisclosure provision, making Barr v. Redacted’s unlimited time frame an outlier.

The Office of the Director of National Intelligence’s most recent statistical transparency report on the use of FISA orders and national security letters during calendar year 2018 shows that there were 10,235 requests filed for 38,872 subscribers’ information last year, virtually all cloaked in secrecy.

FOIA-Released Records Show Black D.C. Residents Face Drastically Higher Arrest Rates for Minor Violations throughout the City

Great FOIA work by Open the Government and the ACLU of D.C. has won the release of new data that shows the disproportionate rates that black D.C. residents are arrested at for minor violations, which white residents are often not cited for; the discrepancies “are spread across the entire District, and not limited to wards with high crime rates.” The arrest rates were obtained from the D.C. Metropolitan Police Department through a FOIA request. ACLU assessed the data in a report, finding that black residents “accounted for 86 percent of the total arrests over the years examined, even though they make up slightly less than half of the District’s population. The report says that disparity held true across 90 percent of the District’s census tracts, ‘including the whitest parts of the city.’”

D.C. Nixes Controversial Changes to FOIA Bill After Backlash

The D.C. City Council will not pursue proposed changes to the District’s FOIA law after substantial backlash. The changes were allegedly intended to curtail broad requests, but could have made it significantly more difficult to obtain government records – like recently-released emails disclosed thanks to a Washington Post FOIA request showing Council member Jack Evans (D-Ward 2) was seeking employment opportunities at law firms that lobby the Council. The changes were included in a 160-page budget and “limited what people could request to information relating to ‘official acts of public officials and employees’ and called for requestors to ‘describe with particularity’ the information they wanted.” Tom Susman, president of the D.C. Open Government Coalition, warned that that “narrowing the definition of what the government has to disclose after a FOIA request could mean that newsworthy and consequential information would remain hidden from public view.”

Via Adam Goldman/ Washington Post

Declassified CIA Clandestine Service Emails Fret Over “UBL/Devil dolls” Story

The Archive obtained CIA emails through the FOIA that show the Agency appears to have known more than it revealed to Washington Post reporter Adam Goldman and other news outlets about the “UBL devil doll” – a “covert influence operation” that bore a likeness to  Osama bin Laden, except that “paint on the [doll’s eyes] would rub off and create a ‘devil-eye’ effect.” At the time the CIA stated in response to a story by Goldman that, to its knowledge, only three dolls were ever created and the agency declined to pursue to the idea or distribute the figure. A June 16, 2014 CIA “FLASH FYSA [For Your Situational Awareness] email to the Office of the Director of the National Clandestine Service [ODNCS], however, warned of a “Possible Future Washington Post Article regarding CIA Covert Influence Operations.” Nate Jones writes that the email appears to show that the CIA had knowledge beyond what its press release stated, and warned that Goldman “has proof of some kind that 1000 or so of the action figures were made by the company in China;” and that Goldman “knows that the relationship between CIA and Don Levine was beyond the dolls – to include backpacks, bicycle pumps and some girls toys.”

Cyber Brief: U.S.-Japan Agreement

The Archive’s latest Cyber Brief focuses on the U.S.-Japan Security Consultative Committee, which was convened last April for the first time since August 2017. The two governments agreed that a cyberattack could, in certain circumstances, constitute an armed attack for the purposes of Article V of the U.S.-Japan Security Treaty. A decision as to when a cyberattack would constitute an armed attack would be made on a case-by-case basis. To commemorate the meeting, the Archive posted a handful of new documents to its Cyber Library that help contextualize the agreement, including a 2011 U.S.-Australia agreement to a similar extension of the Australia, New Zealand, and U.S. Security Treaty (ANZUS Treaty) to consult and determine appropriate collaborative options to address cyber threats.

TBT Pick: The CIA’s Vietnam Histories

This week’s #TBT pick is a 2009 posting on newly declassified CIA histories that show every aspect of the agency’s involvement in what would become the Vietnam War. The six volumes of formerly secret histories (the Agency’s belated response to a FOIA request by Archive senior fellow John Prados) document CIA activities in South and North Vietnam, Laos, and Cambodia in unprecedented detail. Revelations from the documents include:

  • The CIA and U.S. Embassy engaged in secret diplomatic exchanges with enemy insurgents of the National Liberation Front, at first with the approval of the South Vietnamese government, a channel which collapsed in the face of deliberate obstruction by South Vietnamese officials [Document 2 58-63].
  • As early as 1954 that Saigon leader Ngo Dinh Diem would ultimately fail to gain the support of the South Vietnamese people. Meanwhile the CIA crafted a case officer-source relationship with Diem’s brother Ngo Dinh Nhu as early as 1952, a time when the French were still fighting for Indochina [Document 1, pp. 21-2, 31].
  • CIA raids into North Vietnam took place as late as 1970, and the program authorizing them was not terminated until April 1972, despite obtaining no measurable results [Document 5, pp. 349-372].

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