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New Year, New Transparency Trouble-Spots To Watch: FRINFORMSUM 1/7/2021

January 7, 2021
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Trump Appoints Loyalists – Including a Real Estate Lawyer – to PIDB

President Trump has recently appointed three new members to the Public Interest Declassification Board (PIDB) – an important presidential advisory committee “with the official mandate of promoting the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” When at full capacity, the board consists of nine members – five presidential appointees “and one each by the Speaker and Minority Leader of the House, and the Majority and Minority Leaders of the Senate. The PIDB’s founding statute requires the appointment of U.S. citizens who are preeminent in the fields of history, national security, foreign policy, intelligence policy, social science, law, or archival science.

The Trump appointments to the board should be noted – and in at least one instance, challenged.

  • Ezra Cohen Watnick, the current acting Under Secretary of Defense for Intelligence and Security (and Michael Flynn protege), is nominated to chair the board
  • Adam Telle, a long-time Republican committee staffer who has served as the majority clerk for the Subcommittee on Homeland Security – Committee on Appropriations, is nominated as a board member,
  • and Paul Noel Chretien, a real estate lawyer, is nominated as a board member. 

The three-year appointments, particularly the last, should be scrutinized. While the PIDB has not always lived up to its potential, its members have always been well-versed in national security and classification issues – and one has to ask how a real estate lawyer meets these mandatory requirements.

DNI Drops CUI Bombshell

The Director of National Intelligence John Ratcliffe is asking the White House to revoke Executive Order 13556 – a 2010 directive to establish “an open and uniform program for managing” controlled unclassified intelligence (CUI). (The EO was an attempt to wrangle the sometimes incompatible controls concerning the 100+ distinct categories of unclassified information that require distribution restrictions.) In his Dec. 4, 2020 letter – itself marked For Official Use Only – to National Security Adviser Robert O’Brien, Ratcliffe says “Given the complexity of the program, I believe that the full rescission of E.O. 13556 is the only viable alternative”.

Steve Aftergood reports that Ratcliffe’s jarring request comes just as agencies are required to post their CUI implementation plans, and ignores that the EO has been “fully embraced” by most other agencies, including the Department of Defense. Rather bizarrely, Ratcliffe’s memo “did not request an extension of time to achieve compliance, as he might ordinarily have done. Nor did he seek an exemption for intelligence agencies from the overall policy. Nor did he suggest another approach to address the persistent problem of identifying, sharing and protecting CUI whose broad contours have long been recognized, including by President Bush in 2008.”

Aftergood notes that the memo may be counterproductive, writing that, “DNI Ratcliffe’s ‘strong opposition’ to US Government policy on CUI together with his inability to formulate an acceptable alternate approach may, however, serve to elevate information policy as a priority for the Biden Administration.” 

Trump Admin Politicizes Unconfirmed Intel

In an extremely controversial move, the Trump administration has declassified uncorroborated intelligence alleging that the Chinese government is paying “non-state” actors in Afghanistan to kill American service personnel. (The intel does not specify if those non-state actors are the Taliban or another organized group.) IF the intelligence is true, it would mark a dramatic shift in the Chinese approach to the war in Afghanistan. The potential news also follows a July 2020 bombshell by the New York Times that Russia offered bounties to Afghan militias to kill American troops. 

The decision to release the unvetted intelligence is potentially dangerous and marks another instance of the Trump administration politicizing the declassification process. Late last year – both at the end of September and in early October – Director of National Intelligence John Ratcliffe selectively declassified information “that included sensitive intelligence about Russians discussing Hillary Clinton and her 2016 presidential campaign”. Critics have called the actions tantamount to spreading Russian disinformation for political purposes.

NARA Proposes Rule Change for Electronic Records – Public Comments Sought

The National Archives and Records Management (NARA) is seeking public comment on a proposed rule concerning the digitization of public records – namely, it is attempting  “to amend our electronic records management regulations to add a subpart containing standards for digitizing permanent Federal records so that agencies may dispose of the original source records, where appropriate and in accordance with the Federal Records Act amendments of 2014. We are also making a minor revision to our records schedule review provisions to establish a requirement for agencies to review, every five years, all records schedules that are ten years old and older, based on the date the National Archives and Records Administration (NARA) approved the schedule.”

NARA’s challenge of managing the tsunami of incoming digital records is immense, and the agency – whose budget and staff size have shrunk while its obligations have grown – should be applauded for its ongoing work to engage the public about its efforts and challenges. Yet this proposed rule change – which comes on the heels of 2019’s “Transition to Electronic Records” memorandum issued jointly with OMB and requiring all agencies to manage all their permanent records electronically by December 31, 2022 – poses serious concerns for historians, including:

  • How much oversight will NARA have of the digitization process to ensure its carried out properly and will include all relevant metadata?
    • NARA’s oversight of agency compliance with previous rules regarding email preservation raises concerns that NARA’s approach in this instance will be relatively hands-off, and that spot checks for individual agency compliance will be few and far between. Moreover, the impending deadline of the 2019 memo, coupled with this new rule change, raises the possibility that some agencies will choose the quickest and cheapest digitization process over long-term archival requirements.
  • What happens to physical records after they have been digitized? Will agencies have free reign to dispose of them?
  • Will there be backups of digitized files if they become corrupted?

Public comments are sought on or before February 1, 2021.

Intelligence and Vietnam (II): Return of The Top Secret 1969 State Department Study

The National Security Archive recently posted an update to a 2004 E-book featuring a landmark but still relatively little-known State Department study of the Vietnam War from 1969.  Commissioned by Thomas L. Hughes, the head of the Bureau of Intelligence and Research, it was a more modest account of the war than its more famous cousin, the Pentagon Papers. Yet in some ways it was more insightful and is considered essential to understanding the Department’s role in the conflict.

The Archive’s original posting presented a sometimes heavily redacted version of the document – all that was available at the time. However, after an Archive appeal under the Freedom of Information Act, the State Department released a much more complete version – most notably including an entire 275-page section consisting of specific references to INR’s contributions to various government reporting, including its own papers, CIA estimates, and other records.

In Brief

Don’t miss these two must-reads on what the Biden administration can and must do to bolster transparency and open government in 2021:

But the final piece will be advocacy. Accountability through FOIA requires the public, media, and watchdogs to keep fighting. For those of us who have paid close attention to the malfeasance and obstruction of the last four years, I don’t think that’s asking too much.

Both of these items draw on recommendations made in Accountability 2021, an outstanding  coalition report that the National Security Archive was proud to have helped with and which is full of Day 1 and sustained actions that the Biden administration can take to strengthen transparency and ethics across the federal government. 

Finally, be sure to read Democracy, history and the Presidential Records Act by the American Historical Association’s James Grossman and the Society for Historians of American Foreign Relations’s Richard Immerman. The authors rightly laud the efforts of Sen. Chris Murphy to introduce the Promoting Accountability and Security in Transition (PAST) Act, which seeks to close loopholes in the Presidential Records Act exploited by President Trump. The bill, which the National Security Archive enthusiastically endorses, would allow for – among other important improvements – increased judicial review of compliance with the PRA, and would “enable and promote histories that are thorough, accurate and reliable — and subject to appropriate revision as more records become available over time.”

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