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Border Agency Gets OK to Hide Previously Public Info from FOIA, and Much More: FRINFORMSUM 2/6/2020

February 6, 2020

A Customs and Border Protection vehicle patrols the border fence in El Paso, Texas. (Jinitzail Hernández / CQ Roll Call via AP Images)

CBP Now A “Security Agency” With Broad FOIA Carve-Outs

The Trump administration has designated Customs and Border Protection (CBP) a “security agency”, a move that puts CBP in the same category as the Secret Service and the FBI, among others. And the new designation grants CBP increased leeway in withholding information from the public.

A January 31, 2020 memo from CBP Acting Commissioner Mark Morgan, which was obtained by The Nation’s Ken Klippenstein, states, “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”

An anonymous CBP contractor provided the memo to Klippenstein, noting “Designating all of CBP a Security Agency exempt from OPM’s disclosure policy is simply absurd. There’s no need for the average CBP employee to have their name and position redacted from FOIA requests. This is another example of the current administration making it even more difficult to obtain pertinent information via official channels and claiming it’s related to security in some way.”

The motivation for the policy shift is equally irrational; the agency took issue with a Twitter account that was posting employee salary information – information that had long been publicly available through both Office of Personnel Management salary databases and the internet.

Another interesting tidbit from the article: Immigration and Customs Enforcement was assigned “at least one” detailee from the National Security Agency, begging the question why ICE needs input from the spy agency in the first place?

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New OIP Director Named

The Department of Justice’s Office of Information Policy, which is in charge of “encouraging” government-wide FOIA compliance – an important step short of actually enforcing the law, officially has a new director – Bobak Talebian. Talebian has been the acting director since Melanie Pustay retired in October 2019.

Under Pustay, OIP regularly published misleading FOIA statistics and provided an incomplete view of FOIA processing to both Congress and the public. In a prime example, the office’s annual summary of agencies’ FOIA reports regularly touted FOIA release rates of well over 90 percent across the government, a laughable claim. OIP arrived at this figure by excluding FOIA requests agencies denied by: overcharging fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits);  issuing a “no records” response (very frequently the result of inadequate searches); and requests deemed “improper for other reasons” (which ostensibly includes the increasingly-common “can neither confirm nor deny” Glomar exemption). A more accurate release rate calculated by the National Security Archive and others hovers between 50 and 60 percent.

Over the years, Pustay doggedly refused to acknowledge FOIA’s systemic problems, agencies’ hostility to complying with FOIA, or her office’s unwillingness to take agencies to task for not following the law. In 2015, Pustay was accused by the former chair of the House Committee on Government Oversight and Reform, Rep. Jason Chaffetz (R-Utah), of living in “la-la-land” for testifying that she believed FOIA was being properly implemented, and Senator Chuck Grassley told her during a 2018 hearing that her explanations for why the “release to one, release to all policy” had yet to be finalized (it still hasn’t) didn’t pass the “common-sense test.”

Talebian could, if he chooses, takes steps to restore the requester community’s faith in the office. One way would be to publish a more accurate assessment of FOIA for this year’s OIP summary of agency FOIA reports. Another promising sign would be asking the Attorney General to direct all DOJ litigating divisions to undertake a “litigation review” of pending and future FOIA lawsuits (the last time this was done was 1993). These changes would help allay fears that OIP will continue to write agencies a blank check for underperforming on FOIA.

Hurricane Dorian’s SharpieGate Map: “Yes, that was doctored”

BuzzFeed News’ Zahra Hirji and Jason Leopold won FOIA-released documents from the National Oceanic and Atmospheric Administration showing the internal fallout within the NOAA and the National Weather Service after President Trump falsely claimed in September 2019 that Alabama was one of the southern states “most likely to be hit” by Hurricane Dorian. Trump promoted a doctored map with a sharpie bubble drawn on top of the official prediction that showed the storm moving towards Alabama. A forecaster attempted to correct the error, and the NOAA inexplicably took the President’s side over its own climate scientist in an anonymous memo. The released emails show that scientists, “both inside and outside the government, were horrified”, and were concerned about the impact the event would have on morale and the possibility of retaliation against scientists who contradict the president.

Starting to Crack a Hard Target: U.S. Intelligence Efforts Against the Soviet Missile Program through 1957

In the eyes of U.S. intelligence and the military services, the greatest threat to American national security during the early Cold War was the emerging Soviet missile program with its ability to deliver nuclear weapons to targets across the United States. Before the era of satellite surveillance, the U.S. scrambled to develop ever more effective intelligence-gathering methods, notably the U-2 spy plane, spurred on by having missed practically every important Soviet breakthrough of the time – including the first intercontinental ballistic missile tests and the world-changing Sputnik launches.

Early U.S. monitoring of Soviet missile activities is an important part of the history of nuclear weapons and even has parallels to the challenges faced today in tracking the programs of adversary states such as North Korea and Iran. Unfortunately, most of the record, even six or seven decades later, remains highly classified.

However, working with declassified materials from CIA and other sources, James E. David, curator of national security space programs at the Smithsonian National Air & Space Museum, has pieced together a fascinating part of the story of the U.S. missile-tracking effort up to 1957. David’s last E-Book for the Archive described American spying on Communist military parades during the Cold War. Read it here.

Work of 4th Soviet Spy at Los Alamos Revealed

Documents recently declassified by Los Alamos laboratory shed new light on a Soviet spy, code named Godsend, who worked in the atomic bomb program. Historians revealed the existence of Godsend, whose real name was Oscar Seborer and is the fourth known Soviet in the US’s Manhattan Project, last year – but the extent of his role was unknown until the Los Alamos release. The new release shows Seborer “had an intimate understanding of the bomb’s inner workings. His knowledge most likely surpassed that of the three previously known Soviet spies at Los Alamos, and played a crucial role in Moscow’s ability to quickly replicate the complex device.” Specifically, Seborer was employed by the X-5 unit and worked on the firing circuits for the bomb’s 32 detonators.

ICYMI: Why You May Never Learn the Truth About ICE

Check out Dr. Matthew Connelly’s New York Times op-ed, “Why You May Never Learn the Truth About ICE”, if you haven’t yet. The article begins by examining some of the National Archives and Records Administrations most notable recent flubs – including doctoring a photo of the 2017 Women’s March on Washington, and tentatively approving a records retention schedule that would have allowed ICE to designate as temporary – and then destroy – “documents detailing the sexual abuse and death of undocumented immigrants.” Public outcry compelled the Archivist of the United States, David Ferriero, to tell the agency to revise its schedule, but the new one, which was formally approved, still allows ICE to destroy records concerning “detainees’ complaints about civil rights violations and shoddy medical care.”

NARA is certainly understaffed and underfunded, and Dr. Connelly points out that, adjusted for inflation, Congress has cut NARA’s budget every year for the last three years. But resources are not the only roadblock; the article raises existential questions about what archival efforts should look like in the digital age, and how do archives responsibly manage the transition? For example, what will happen to historic paper records – the CIA alone has over 150 million pages of them – when NARA stops accepting paper records in two years? And what does the future of the presidential library system look like now that NARA will no longer maintain it? The questions are of the utmost importance, but the answers are worryingly vague.

 

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