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9th Circuit Finds FBI Can Withhold Information on Surveillance of Muslim Communities: FRINFORMSUM: 2/8/2017

February 8, 2018

9th Circuit Finds FBI Can Withhold Information on Surveillance of Muslim Communities

The Ninth Circuit Court ruled last week that the FBI does not have to release thousands of pages of documents in response to a FOIA lawsuit for information on the Bureau’s surveillance of Muslim communities. During the course of the FOIA lawsuit for information on surveillance of Bay area Muslim communities, the Bureau alleged that nearly 48,000 pages of documents were exempt from release to the American Civil Liberties Union, Asian Law Caucus, and the San Francisco Bay Guardian, pursuant to the FOIA’s exemption 7, which covers law enforcement records and information.

District Judge Richard Seeborg ruled in 2015 that the FBI could not withhold training manuals and guidelines under Exemption 7 because, “Exemption 7 only applies to documents that are related to a specific investigation or enforcement of a particular law.”

The Ninth Circuit disagreed with and rescinded Seeborg’s ruling, “finding that general documents related to a legitimate law enforcement activity can still be withheld under Exemption 7 in certain circumstances.” The judges “remanded the case for further analysis to determine if disclosing the records ‘would cause any of the specific harms’ identified in six subsections of FOIA Exemption 7.”

OSTP Calendars Show Director Candidates Have Been Interviewed, But Position Remains Vacant

A FOIA request for the calendars of the White House Office of Science and Technology Policy’s only political appointee, Michael Kratsios, shows that he had interviewed at least three people to lead the office by October 20, 2017. The names of the candidates were withheld to protect personal privacy, but the calendar shows that aides to Vice President Pence sat in on at least two of the interviews. The directorship of the agency that advises the president on a wide range of science and technology issues, however, remains vacant.

Video of FCC Chairman Pai Joking About Being A Verizon “Puppet” at Agency Event Hidden by B5

The Federal Communications Commission claims that releasing a video of chairman Ajit Pai joking with a Verizon executive about being the company’s “puppet” for a video shown to a gathering of the Federal Communications Bar Association on December 8, 2017, would injure the “quality of agency decisions” and therefore must be withheld under the FOIA’s “withhold it because you want to” Exemption 5. (The video is also available online, making the decision to withhold the video, as well as information on how it was produced, more untenable.) The video was shown at the annual event while the agency was facing wide-ranging criticism for reversing net-neutrality rules.

Exemption 5 is not designed to protect agency employees from embarrassment or because “errors and failures might be revealed, or because of speculative or abstract fears;” it is also discretionary and should take public interest into account. The Archive’s Nate Jones told Gizmodo that, “even if this is a legally valid withholding by the FCC, it is not acting in the public’s interest to hide this information.”

Tet Offensive Documents to Be Declassified Beginning July 2018

The Office of the Director of National Intelligence recently announced that director Coats, to commemorate the 50th anniversary of the Vietnam War’s Tet Offensive, directed the Intelligence Community “to review their holdings to reveal previously classified details to the public.” The move comes a year after former ODNI head James Clapper “instructed the Intelligence Community Senior Historians Panel to identify topics of historical interest for declassification and release, as a part of the IC’s continuing efforts to enhance public understanding of IC activities.” The Tet Offensive release is the first effort in this initiative. The documents will begin being released in July of this year, and will be released over a period of 15 months.

For interested scholars and researchers, the Archive’s Vietnam Project has a number of declassified documents on the Offensive.

Ethics Training for White House Staff to Not Use Encrypted Messages for Official Business

The Washington Post reports that, during a mandatory ethics training, White House lawyers reminded “President Trump’s staff not to use encrypted messaging apps for official government business as the administration seeks to dismiss a lawsuit accusing it of violating federal records laws.” The lawsuit in question is brought by Citizens for Responsibility and Ethics in Washington (CREW) and the Archive, and argues that White House officials reported use of encrypted and disappearing messaging acts, like Confide, violates the Presidential Records Act.

Slate Honorable Mention for Able Archer 83 Project

Congratulations to the Archive’s Able Archer 83 Project and its director, Nate Jones, whose article – co-authored with J. Peter Scoblic – was highlighted for an honorable mention for Slate’s most popular stories of 2017. The article, The Week the World Almost Ended, examines how in 1983, the NATO war game Able Archer 83 simulated a US nuclear war with Russia—and only narrowly avoided starting a real one. More fascinating resources on the War Scare can be found on the Archive’s website.

DC Open Gov Watchdog Canned with No Explanation

The District of Columbia’s mayor-appointed Board of Ethics and Government Accountability recently voted not to renew the second, five-year term of the District’s Open Government director, Traci Hughes, who is in charge of “policing District agencies’ compliance with the Open Meetings Act and Freedom of Information Act.” The decision was made in a closed meeting and no statement was issued. The office – with a staff of three that had to rely on pro bono counsel – sued the “Mayor’s Advisory Commission on Caribbean Community Affairs over its refusal to comply with open-meeting laws” and a judge ruled the commission had to follow Hughes’ recommendations. Hughes also recently ruled that the District’s only public hospital, United Medical Center, recently “violated the law when it held a secret vote to close the facility’s obstetrics ward — a decision that left Southeast Washington without a hospital for women to give birth or seek prenatal care.”

Cyber Brief: Cybersecurity and Deterrence

This week’s new Cyber Brief items are chosen with the January 2018 publication of a draft of the Trump administration’s Nuclear Posture Review (NPR), which has raised questions about modern concepts of deterrence and the potential link between cyber and nuclear weapons, in mind.  This week’s posting provides both the draft and final versions of the NPR, and for context adds a number of related studies on deterrence in the current cyber environment. The draft suggests that a cyberattack specifically on U.S. nuclear command, control, and communications (NC3) could warrant a nuclear retaliation – a notion not as plainly expressed in the final document.

TBT Pick – Richard Leghorn, “Political Action and Satellite Reconnaissance” 

Richard S. Leghorn, one of the fathers of strategic aerial and satellite reconnaissance, died January 15. A Boston Globe obituary notes that when Leghorn photographed the atomic bombing of Bikini Atoll – taking 4 million pictures – it convinced him that “we couldn’t have another war.” Leghorn appears in a number of postings in the Archive’s Intelligence Project, including a 2007 posting on US Satellite Reconnaissance between 1958 and 1976. An April 24, 1959, memo featured in the posting and authored by Leghorn, then the head of the Itek Corporation –  the contractor that developed the reconnaissance camera for the CORONA system – addresses the issue of the possible political vulnerability of U.S. reconnaissance satellite programs. Leghorn argues that the “espionage” context in which U.S. programs were viewed – a result of the secrecy attached to the programs – is the “worst possible” context from the standpoint of political vulnerability and suggests the need for an “imaginative political action program” as a means of reducing the program’s political vulnerability.

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Behind the House Intelligence Committee’s Ability to Release “The Memo”

February 2, 2018

From Otis Pike to Devin Nunes – Vastly Different Goals Drove Congressional Efforts to Release Secrets

New York Democrat Otis Pike, chair of the House Select Committee

If you’ve been watching television, YouTube, listening to radio, streaming on your monitor or reading the newspapers, a lot of this week has been taken up by “The Memo.” Chasing devils in Tasmania or traveling elsewhere you might have missed it, but in any case catching up you will find that many pundits and reporters have been saying the House of Representatives bylaw which permits release of “The Memo” is an obscure bit of arcana. In fact, it is not. And House Permanent Select Committee on Intelligence (HPSCI) abilities under Rule XLVIII, Section 7, were forged in the heat of a near-constitutional crisis forty-three years ago.

You can read all about it in the Archive’s June 2017 posting, The White House, the CIA and the Pike Committee, 1975. But the story, in short, is this: in the year 1975 the intelligence agencies were under investigation by special committees in both the Senate and House. The Church Committee, chaired by Idaho Democrat Frank Church, and the House Select Committee (HSC), chaired by New York Democrat Otis Pike, both faced major obstacles in obtaining the information they needed for their inquiries. In addition to the intelligence agencies themselves, Gerald R. Ford’s White House posed obstacles, insisting on pre-approval of any document supplied to the congressional committees. Richard Cheney, as President Ford’s representative, supervised the response. The White House set up a committee of its own, one to oversee the defense of the intelligence agencies, chaired by John Marsh with sidelines advice from presidential counsel Phil Buchen.

White House, Memo from Henry Kissinger, National Security Advisor, to Jack Marsh, Counselor to the President, “Administration Position Towards the Handling of Classified Information with the Pike Committee,” September 23, 1975.

Otis Pike’s investigation kicked up dust in September 1975, responding to executive branch refusals to furnish documentation by issuing subpoenas. Ford’s Justice Department struck back with a blanket refusal to cooperate with the HSC, based on the committee’s alleged intent to reveal secret information. John Marsh’s White House defense committee squirmed on the hook, caught between its desire to avoid scrutiny of the agencies, and the legal power of the Pike committee’s actions. Secretary of State Henry Kissinger advised President Ford to fight the congressional orders even if it meant going to the Supreme Court. The precedents were clear, however. Any judge would find the Pike Committee had been properly empaneled by the House of Representatives, therefore wielded statutory authority which provided that no congressional panel could be denied information necessary to its mission, and that the subpoenas were legal and enforceable. Escalating to the Supreme Court offered no remedy—as with the “Pentagon Papers” case, a Court precedent on paper, against the executive, could be more dangerous than leaving the issue juridically ambiguous.

Both White House and CIA lawyers, in examining the substance of the case, concluded that President Ford had no alternative but to yield on the information, but he could ask Congress to suppress investigators’ reports later. The play around the Pike Committee investigation in 1975 went exactly that way. To get around the formal Department of Justice declaration, intelligence agencies gave information to the HSC under the pretense they were “loaning” the documents. The Pike committee tacitly promised not to release anything without executive branch approval. Once the committee’s report had been completed President Ford asked the House of Representatives to reject its release. The House honored the president’s request. (The leak of the Pike committee report which followed did not count as an official “release.”)

In the meantime a different kind of precedent arose. The Church committee completed an interim report on assassination plots—and President Ford asked that that document be suppressed as well. Ford’s gambit failed, but that is a story for another day. With the Church assassination report example in mind, the House Select Committee included among its recommendations one that any permanent oversight committee have a recognized right to release information of any sort, and suggested draft language which specified the mechanism for doing so. Pike’s recommended language went into the rules for the House permanent intelligence committee without change.

Devin Nunes’ official portrait.

That is the origin of the Section 7 rule under which Devin Nunes has maneuvered to get his “Memo” released. Congressman Pike and his colleagues created a mechanism to prevent the executive branch from impeding an investigation. Mr. Nunes has reversed this purpose, using the same rule in a maneuver to use the Congress to impede an executive branch agency from investigating the president. As the world turns anything can happen it seems.

Secretary Carson on Alleged Ethics Violations: “They can FOIA everything, and they have been,” and “There’s nothing to find. It’s ridiculous.” FRINFORMSUM 2/1/2018

February 1, 2018

FOIA Shows Concern at HUD that Carson was Flouting Ethics Rules

A FOIA request by the Washington Post won the release of a two-page memo voicing concerns from the Department of Housing and Urban Development’s general counsel that Secretary Ben Carson was inappropriately allowing his “son to help organize an agency ‘listening tour’ in Baltimore last summer.” The event was intended to “give the secretary a chance to see federally supported housing projects firsthand and to convey his policy vision to the public,” but the involvement of Ben Carson Jr., a prominent businessman who lives near Baltimore, begged concerns that he was using the event to court potential deals.  The Washington Post reports, “Jereon Brown, a HUD spokesman, confirmed that Carson Jr.’s role was not limited to the community event but declined to be more specific. He said no one was dropped from the list of invitees after the ethics warning. He did not respond to questions about what steps, if any, the secretary took to address the issues raised by the department lawyers.” Of the allegations of impropriety Carson said, “They can FOIA everything, and they have been,” he said. “There’s nothing to find. It’s ridiculous.”

Scott Pruitt’s Role in EPA Document Scrub

FOIA releases from the Environmental Protection Agency indicate that agency head Scott Pruitt was personally involved in decisions to remove climate science data from the agency’s website and that staff were instructed to manipulate search results to promote the Trump Administration’s executive order on energy independence. The documents, released to the Environmental Defense Fund, show Pruitt’s former public affairs associate director, J.P. Freire, requesting the webpages “Climate Change Science,” “Climate Change Impacts,” and “Student’s Guide to Global Climate Change” be removed and archived, calling the request to do so time-sensitive. Emails released through FOIA also detail how EPA staffers were told to redirect website users searching for information on the Clean Power Plan to a page promoting President Trump’s EO on energy independence by making information on the EO a “‘Best Bet’ and thus the first result for Clean Power Plan for our EPA Search engine if you request it.”

Infamous House Memo Alleging FISA Abuses Authored While House Overwhelmingly Voted to Reauthorize FISA  

House Republicans, led by House Intelligence Committee chair Devin Nunes, are trying to release a classified memo that purportedly cites serious abuses of the Foreign Intelligence Surveillance Act. The move comes less than three weeks after the House overwhelmingly voted to reauthorize the FISA and less than two weeks after President Trump signed it into law. The reauthorization, supported by Nunes and Trump, codifies changes to the FISA, including “warrantless FBI queries for Americans’ communications.”

Politico reports that Nunes began investigating the subject of the memo in December 2017 – well before the FISA reauthorization vote, which begs the question: why was the Act was reauthorized at all if the abuses alleged in the memo are legitimate?

The Committee majority is pushing for the memo’s release with the support of the White House but in the face of concerns from the Justice Department and the FBI.

Archive “Snowflakes” FOIA Win Featured on NPR’s ‘All Things Considered’

The Archive’s FOIA Project Director Nate Jones recently stopped by NPR’s ‘All Things Considered’ to discuss the thousands of Donald Rumsfeld “snowflakes” that are being released in response to the Archive’s FOIA lawsuit (more on the documents and lawsuit here). When asked how the memos change after 9/11, Jones notes: “They show initially the secretary of defense coming into the Pentagon and trying to get his – to grasp what’s going on. He actually on September 10 gives a big speech saying that up until this point, he wanted to do battle against entrenched Pentagon bureaucracy, comparing the Pentagon bureaucracy to Red China and the Soviet Union. Then 9/11 happens. On September 12, we have a snowflake that says, we have to figure out some kind of ceremony for all the people that died here. And then that battle on bureaucracy ended, and the war on terror began.”

The Defense Department has released roughly 1,000 pages of documents to the Archive so far as part of our suit, and we expect to receive tens of thousands more. Jones says, “You can’t help but look forward to see and wonder who is going to be mentioned, obviously looking forward to key players today like Secretary Mattis and General Flynn to see how they interacted with Secretary Rumsfeld.”

Scavenging for Intelligence: The U.S. Government’s Secret Search for Foreign Objects during the Cold War

The Archive’s latest posting, compiled by James E. David, curator of national security space programs at the Smithsonian National Air & Space Museum, examines an underreported aspect of U.S. intelligence – “Foreign Military Exploitation” (FME). FME refers to U.S. military and intelligence efforts to discover foreign military equipment to learn adversaries’ abilities and develop defenses against them. The posting draws on records dating from the Cold War “from the Central Intelligence Agency, Defense Intelligence Agency, State Department, National Security Council, and the U.S. Air Force, that describe the priorities, methods, and results of some of the U.S. government’s wide-ranging exploitation efforts, from analyzing Moscow-supplied military equipment captured by Israel during the Six-Day War, to finding a gas bottle dropped from a Soviet satellite over Wisconsin.” The fascinating posting can be read in its entirety here.

Cyber Brief – Emerging Technologies

This week’s new Cyber Brief item – The President’s National Security Telecommunications Advisory Committee 2017 Report on Emerging Technologies Strategic Vision – is chosen with the recent spate of stories on the Strava heat map in mind. Strava data unwittingly publicized highly precise location information on Western military bases and personnel around the world, including in some politically sensitive spots like the Middle East, and raised questions not just for the governments concerned but for private subscribers worried about protecting their own activities. This week’s featured document, as well as a curated selection of relevant documents from our Cyber library, offers background on similar topics – namely security issues surrounding mobile devices and the Internet of Things.

TBT Pick – Tokyo, Washington and the Case of the Missing Nuclear Agreements

This week’s TBT pick is a 2009 posting from the Archive’s U.S.-Japan project concerning the status of secret agreements on nuclear weapons that Tokyo and Washington negotiated in 1960 and 1969. The existence of these agreements was confirmed by declassified U.S. government documents, interviews with former U.S. Ambassador Edwin O. Reischauer, and memoirs by Japanese diplomats. Read the posting here.

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‘Homeland’ Sounds Too German and Other Takeaways from the First Tranche of Rumsfeld’s Snowflakes Release: FRINFORMSUM 1/25/2018

January 25, 2018

Rumsfeld Snowflakes Come in From the Cold

On February 27, 2001, Secretary of Defense Donald Rumsfeld told Deputy Secretary Rudy de Leon that “The word ‘homeland’ is a strange word. ‘Homeland’ Defense sounds more German than American. Also it smacks of isolationism.”

In July of that year he wrote to Doug Feith of his thoughts on oil, noting, “We ought to have on our radar screen the subject of oil- Venezuela, the Caucuses, Indonesia-anywhere we think it may exist and how it fits into our strategies.”

In December he instructed Deputy Secretary Paul Wolfowitz to “get a team together” to “make our next case on anything we do after Afghanistan.”

These brief memos, often described as ‘snowflakes’ – the term used to describe Rumsfeld’s usually one-page, often one-sentence, memos that he sent to his underlings to ask a question or issue an instruction – are just a few of  an estimated 59,000 pages that the Pentagon has begun to provide in segments to the Archive in response to our multi-year FOIA lawsuit. In court filings the Department of Defense attorney confessed, “As far as the delay in the initial response to the request, all I can do is fall on our sword; that was too long.”  Judge Tanya S. Chutkan agreed, calling the DOD six-year delay in response to the Archive’s FOIA request “unconscionably long.”


The full archive of snowflakes is a critical historical resource and will serve as a sort of ultimate Pentagon chronology, touching on such diverse DOD issues as staffing, Rumsfeld’s personal requests, advice from such notables as Frank Gaffney and Newt Gingrich, communications from Rumsfeld to President George W. Bush, relations with Russia, China, and other nations, and the DOD’s strategy and conduct in the wars in Afghanistan and Iraq.

The Archive will publish new installments of snowflakes as they are released to us. Special thanks to the Archive’s pro bono lawyers Melissa Smith, Cliff Sloan, and Greg Craig at Skadden Arps Slate Meagher & Flom.

ICE Posts Personal Information from Victims of Immigration Crime Engagement Office Callers, Briefly Takes Down FOIA Library

Immigration and Customs Enforcement temporarily removed and reviewed the entire contents of its FOIA library late last year after releasing the private information of hundreds of people who had called into the Victims of Immigration Crime Engagement (VOICE) office – publishing the potentially personally identifiable information in both its public call logs and in FOIA releases. VOICE was established in April 2017 by the Trump administration “to support victims of crimes by immigrants” and is not meant to be a crime hotline – although logs released the Arizona’s The Republic in response to a FOIA request show it is largely used “to accuse people of being in the country illegally or of violating immigration laws.” ICE offered two years of identity-theft protection and credit monitoring to those affected by the release and asked the paper to confirm that it had destroyed the records that were sent in error.

E-Discovery Program Slows HUD’s FOIA Work

An Inspector General evaluation of the Department of Housing and Urban Development’s FOIA program comes to a blunt conclusion: the agency is too slow to respond to FOIA requests. The report faulted the agency’s E-Discovery Management System, saying it “does not fulfill its job.”

FedScoop describes the e-discovery system as follows:

“HUD has a contract with Leidos Innovation Corporation for such e-discovery services, the evaluation paper states. As set forth in the contract, the process works like this: A HUD customer (the FOIA office, for example) submits a request for ESI. That request is approved by the general counsel e-discovery team and then passed on to the Leidos contractors for actual collection of the materials.”

The IG found that, among other problems, incoming FOIA requests are more than Leidos’ contract was estimated to cover.  The IG suggests one possible solution would be “moving ESI data to the cloud — away from localized storage — will make it easier to find.”

 “FOIA Surge” Extended at State

Secretary of State Rex Tillerson has extended the “FOIA surge” at the State Department for another 90 days in an attempt to clear the agency’s backlog. The surge is pulling in career diplomats and senior civil servants from other departments in a move that some believe is designed to make them quit (see here for more). The surge was first announced in October 2017 and was intended to clear the department’s backlog of more than 13,000 requests. Politico’s Nahal Toosi reports that, despite the genuine need for the department to reduce its backlog, some officials “see the initiative as a make-work exercise designed to induce them to quit as Tillerson tries to cut State’s budget and streamline its staff.”

NSA Deleted Surveillance Data After Telling Court It Would Be Preserved

News that the National Security Agency deleted surveillance data pertinent to multiple pending lawsuits is breaking shortly after Congress authorized, and the President signed into law, the extension of the legal authority that authorizes the agency’s surveillance work. The NSA, in addition to deleting the data, “apparently never took some of the steps it told a federal court it had taken to make sure the information wasn’t destroyed” – information it has been required to maintain since 2007.  Court filings first reported by Politico’s Josh Gerstein show that the agency “did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016.”

The government admitted the deletion and non-compliance in a court filing on January 18, 2018, one day before President Trump signed the FISA Amendments Reauthorization Act of 2017 into law; the authorization will expire in December 2023.

Sunlight Foundation’s audit of agency opengov responses.

Sunlight Foundation Reports on Openness under Trump

The Sunlight Foundation has released its report on transparency under President Trump, “Under Trump, U.S. government moves from /open to /closed.” As part of its survey, Sunlight contacted the 24 agencies covered by the Chief Financial Officers Act and asked them a series of questions – including for basic FOIA statistics agencies are required by the Justice Department to disclose every quarter (the State Department does this). Sunlight found, “When we called public FOIA officers/liaisons for the first time, we reached voice mail 91 percent of the time, and then received a callback 26 percent of the time. Of those callbacks, just 20 percent our answered questions regarding 2017 FOIA statistics.” The remaining agencies, including the Department of the Interior, told Sunlight to file a FOIA request for the data – displaying a troubling lack of awareness of their obligations under the FOIA.

Cyber Brief: United States Department of Defense Cyber Operations

The Archive’s Cyber Vault recently posted a new document received in response to an Archive FOIA request on DOD’s cyber operations – STRATCOM’s February 2008 CDRUSSTRATCOM CONPLAN 8039-0. The document, which is posted alongside 11 relevant documents from our Cyber Library to help researchers contextualize the new release, provides cyberspace strategy for Strategic Command and a framework for the execution of tasks to generate effects in cyberspace in support of DoD objectives.

TBT Pick – The Diem Coup: JFK an South Vietnam

This week’s #TBT pick is a 2013 posting commemorating the 50th anniversary of the coup overthrowing South Vietnamese President Ngo Dinh Diem. The posting “further strengthens the view that the origins of U.S. support for the coup which overthrew South Vietnamese president Ngo Dinh Diem 50 years ago today traces directly to President Kennedy, not to a ‘cabal’ of top officials in his administration.” Get the whole story here.

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Presidential Records Act Lawsuit Targets White House’s Disappearing Messaging Apps: FRINFORMSUM 1/18/2018

January 18, 2018

Federal Judge Hears Oral Arguments in Presidential Records Act Case Targeting Disappearing Messaging Apps

Lawyers for the National Security Archive and Citizens for Responsibility and Ethics in Washington (CREW) argued this week that their case – alleging that the White House is not upholding its responsibilities under the Presidential Records Act – has grounds to proceed in spite of the government’s motion to dismiss. Oral arguments were heard by Judge Christopher Cooper in the District Court for the District of Columbia.

CREW and the Archive first filed suit in June 2017 on the heels of reports that some members of the White House staff were using messaging apps, like Confide, that prevent the storage and preservation of records.

This week Justice Department lawyer Steven Myers argued that the court did not have the jurisdiction to hear the case, saying “Courts cannot review the president’s compliance with the Presidential Records Act.”

The scope of the PRA, however, has been “defined by litigation” brought by the National Security Archive, such as when the Archive “sued at the end of the Reagan administration to preserve email backup tapes that provided evidence in the Iran-contra scandal — that produced the appeals court rulings in the 1990s — or when it and CREW in 2009 won the restoration of 22 million emails from George W. Bush’s presidency.”

CREW’s Anne Weismann countered the DOJ’s argument saying, “If this court found there is no judicial review here, then I think the president and White House would be granted license to ignore all Presidential Records Act obligations.”

The suit also challenges the Trump administration’s use of Executive Orders, saying it has the potential to transform “into presidential records what would otherwise become federal agency records, allowing them to be cloaked in secrecy.”

Judge Cooper said he would rule “in due course” on the government’s motion to dismiss.

There was no mention during the oral arguments of the “Trump administration’s move to ban personal electronic devices from the White House,” which would likely effect staffers’ use of such apps.

FOIA Advisory Committee Votes on Common-Sense Recommendations for Searches, Access

At its most recent meeting the FOIA Advisory Committee unanimously voted to support the recommendations – ranging from general guidance and specific steps agencies should take – developed by the committee’s subcommittees. The Office of Government Information Service’s (OGIS) blog summarizes the approved recommendations as follows:

  • increase the release of agency FOIA logs in a way that is most useful to improving understanding of agency records and how the law is being used;

  • provide agencies with criteria for setting priorities for proactive disclosure;

  • give agencies a guide to categories of records that should be regularly released based on the ease of making them available and their importance for understanding the government’s actions; and

  • address requirements that documents on agency’s FOIA websites are accessible to individuals with disabilities.

The Advisory Committee also passed recommendations instructing agencies to ensure that they are taking steps to efficiently and accurately search emails in response to FOIA requests.

The concrete and common-sense recommendation concerning 508 compliance advised agencies not to remove documents from their websites (as has troublingly occurred recently), encouraged common-sense remediation practices (including simple Optical Character Recognition scans) and explained that unremediated documents can still be posted online if they meet an “undue burden standard” included in the Rehabilitation Act. Ripe targets for this “undue burden standard” include documents not “born in electronic format” and large, voluminous records. Until now, there has been no recommendation or guidance on how to proactively post documents online by the Access Board, DOJ OIP, or OGIS. Hopefully this unanimous recommendation by the Federal FOIA Advisory Board will increase the speed, quantity, and quality of documents that the federal government posts online for the public to have access to.

The Advisory Committee’s next meeting is April 17.

SEC Wants to Make it Harder to File FOIA Requests from Educational Institutions

SEC’s proposed rule change for FOIA requests from educational institutions.

The Securities and Exchange Commission has proposed a rule that would make it harder – and potentially more expensive – to file FOIA requests from an education institution.

Currently, to be recognized as filing a FOIA request on behalf of an educational institution, and conversely to qualify for favorable fee status, the FOIA only requires that the affiliated organization “have a purpose of scholarly or scientific research.”

The Securities and Exchange Commission, however, has proposed a rule that would make it significantly harder to qualify. The proposed rule would require that “A requester in this fee category must show that the request is authorized by, and is made under the auspices of, an educational institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research.”

As reported in JD Supra, this “makes two potentially important changes to the statutory requirement.  First, the statute merely requires the disclaimer of a commercial purpose, the SEC’s rule requires a showing of scholarly purpose.  Second, the SEC’s requirement narrows the noncommercial purposes to only ‘scholarly research’.  While this may seem little more than a cavil, the SEC should not be allowed to erode the FOIA by subtly shifting statutory requirements.”

Comments are due by February 2.

CIA Will Release Fudge Recipes but not post-WW II Clandestine Service Histories

Benajmin Wittes recently submitted a FOIA request to the CIA for director Mike Pompeo’s 2017 holiday message to agency personnel after hearing complaints that the message was overtly political – and, in response, received a personal note from Pompeo defending his message.

A copy of the message was included in the response (along with Pompeo’s family fudge recipe).

Curiously, while the message was redacted, it was not released through FOIA (if it had been, classification markings would be crossed out, there would be exemptions cited for the redactions, and there would be a denial letter advising the requester their appeal rights). Taking the FOIA response out of the FOIA track is, in this instance, probably harmless enough, but is at an odd precedent and time that would have been better spent releasing historical documents of actual importance – like agency clandestine service histories from the 1940s and 50s – that the CIA continues to hide.

A “Harsh and Terrible…Solution”

A new book by long-time colleagues of the National Security Archive, James G. Blight and janet M. Lang, offers a fresh exploration of the 1962 Cuban missile crisis and plumbs its lessons on the continuing dangers of nuclear war.

Homing in on the Cuban perspective, Dark Beyond Darkness aims to fill a persistent gap in the history – the general dismissal of Cuba’s stake – that not only skewed our understanding of the event for years but helped make the crisis so perilous in the first place. It places the Cuban dimension squarely at the center of the reader’s line of sight, allowing for an in-depth appreciation of the “physical and psychological reality faced during the crisis by everyone in Cuba” as they struggled to deal with the seemingly existential threat presented by the superpowers’ ill-informed and self-absorbed mutual face-off.

A flyer in which five independent initiatives invite citizens to participate on January 15, 1989 in a Jan Palach memorial in Prague, as well as a January 21 pilgrimage to his grave in the village of Všetaty (30 km north of Prague).

TBT Pick – Jan Palach Week, 1989

This week’s #TBT pick is chosen with the anniversary of “Palach Week” in mind and is a 2009 posting on the beginning and end of Czechoslovak Communism. The posting contains documents from the secret police, the Communist Party, and dissident documents posted jointly by the Czechoslovak Documentation Centre (Prague) and the Archive.

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Fermi, Reagan, and Trump

January 16, 2018

President Reagan’s “nuclear football” on Red Square, 1988.

Enrico Fermi was the first to create a nuclear chain reaction.  He also coined what is now known as Fermi’s Paradox, a question asking, essentially: If, on the grand scale, the probability of intelligent extraterrestrial life developing elsewhere in the universe is so high, why haven’t humans yet been contacted?  One theory, pondered by Fermi and others, was that over the grand scale, all alien civilizations eventually gain enough knowledge to split the atom.  After that, the theory goes, it is an inevitability that on the same grand scale all civilizations eventually destroy themselves through nuclear war.  Hence, despite the high probable likelihood, no verified extraterrestrial contact has occurred.

Those that believe this answer to Fermi’s Paradox may be the correct one must have been startled to read a recent opinion piece in the Washington Post by Marc A. Theissen arguing that President Donald Trump’s provocation of a nuclear power was the act of a “stable genius.”  This dangerous commentary by a mainstream author in mainstream newspaper suggests that our civilization may be approaching this nuclear nadir faster than previously believed.

In his article Theissen claims that Trump is conducting an “intentional campaign designed to get North Korea to understand that Trump, unlike his predecessors, is willing to use force to stop Pyongyang from threatening American cities.”  He then postulates that Trump’s threats of war, combined with strikes on nuclear and missile facilities, or even, gasp, “a second Korean War” could be the best response to North Korea’s current ability to strike the United States with a nuclear weapon.

Theissen also argues that “stable genius” President Trump is simply following the successful strategy of President Reagan who tricked Soviet leaders into believing that he “might just be crazy enough to push the nuclear button constrained Soviet behavior and helped make possible a peaceful end to the Cold War.”

While most sober-minded readers will be able to spot the logical fallacies in Thiessen’s proposed solution – threatening and being willing to fight a war, possibly conventional, possibly nuclear, with North Korea– many may not know that his description of President Reagan’s views on nuclear war and his reaction to the Able Archer 83 War Scare, a realistic nuclear war game which spooked the Soviets to ready their nuclear arsenal to an unprecedented alert, was not accurate.

Reagan was a nuclear abolitionist, abhorred nuclear weapons, and believed nuclear war to be immoral.  While he did continue the Carter administration’s military buildup and contributed to the increased US-Soviet tensions with his rhetoric, he made absolutely clear on the floor of Congress that “A nuclear war cannot be won and must never be fought. The only value in our two nations possessing nuclear weapons is to make sure they will never be used. But then would it not be better to do away with them entirely?”

From President Reagan’s Diary, November 18, 1983.

Likewise, Reagan was chastened by the 1983 War Scare, which included Able Archer 83.  Weeks after Able Archer 83 he wrote in his diary, “[Secretary of State] George Shultz & I had a talk mainly about setting up a little in house group of experts on the Soviet U[nion] to help us in setting up some channels. I feel the Soviets are so defense minded, so paranoid about being attacked that without being in any way soft on them we ought to tell them that no one here has any intention of doing anything like that.”

Reagan reached out to his Soviet counterparts several times during his first term in an effort to reduce nuclear weapons and tensions.  This included sending a letter from his hospital bed after being shot, pleading to Leonid Brezhnev, the leader of the Soviet Union for “meaningful and constructive dialogue which will assist us in fulfilling our joint obligation to find lasting peace.”

During Reagan’s second term, he found a Soviet partner, Mikhail Gorbachev, to make this lasting peace, eliminating an entire category of over 2,600 nuclear missiles, ending the Cold War, and shepherding in the peaceful dissolution of the Soviet Union and totalitarian control of Eastern Europe.

Reagan made this hard bargain because of his desire to minimize the risk of nuclear war, including through miscalculation.  The president knew and feared that nuclear war could occur through misreading an adversary, bad luck, or a  human pressing the wrong button.  In September 1983, after Soviet fighter jets shot down KAL 007, a civilian airliner, because they mistakenly believed it to be a US spy plane, Reagan wrote, “If, as some people speculated the Soviet pilots simply mistook the airliner for a military plane, what kind of imagination did it take to think of a Soviet military man with his finger close to a nuclear push button making an even more tragic mistake?”

Thiessen –and the president— would do well to read Reagan’s own writing on nuclear statesmanship rather than misrepresent history.  In the meantime, the mischaracterizing of President Reagan as a nuclear cheerleader rather than a nuclear abolitionist is another troubling indicator that we may not like the answer to Fermi’s Paradox.

This essay may be reprinted.

The FOIA Office is Not Siberia: FRINFORMSUM 1/11/2018

January 11, 2018

Officials at State Dept. Joke FOIA Office is ‘Siberia’

“The FOIA office was always the punch line of a joke around here, as in: ‘They’ll send me to the FOIA office,’” this, according to State Department officials quoted in a recent Hill article.

The officials also said being sent to the department’s FOIA office “is like being reassigned to ‘Siberia.’”

The remarkable, on-the-record quotes appear in a recent Hill article chronicling the admittedly questionable reassignment of the department’s Population, Refugees and Migration bureau head, Lawrence Bartlett, to the FOIA office – possibly as part of State Secretary Rex Tillerson’s attempt to reduce the FOIA backlog. The unusual move raised eyebrows considering, among other things, Bartlett’s rank and experience.

The specifics of Bartlett’s reassignment aside, the attitude towards the State Department’s FOIA office expressed by these officials is troubling. The State Department’s FOIA office depends on the responsiveness of the bureau offices because, once a FOIA request is received by the FOIA office, it is often tasked out to the appropriate bureau(s) to search for the documents, only after which are the documents returned to the FOIA office for a response to the requester. If this is the department’s attitude towards the FOIA shop, it’s no wonder that requests can stagnate at the State Department for years while the FOIA office waits for a response from bureau offices.

At the State Department, the ethos that “FOIA is everyone’s responsibility” is a critical one to internalize – and the above statements indicate that the State Department, even after the intense focus on the FOIA shop over the lawsuits for Hillary Clinton’s emails, has not learned its lesson.

It is additionally problematic that when news surfaces of agency officials belittling FOIA and FOIA offices, that the Department of Justice’s Office of Information Policy and the Office of Government Information Services, as well as the trade association the American Society of Access Professionals, do not – at least publicly – push back against the disparagement. In the future, they should make a concerted effort to do so.

Defense Officials Seek Unprecedented Control over Historical Reports on Nuclear Weapons Stockpile – With NARA’s OK

The Defense Threat Reduction Agency (DTRA) requested – and the National Archives and Records Administration (NARA) approved – a records disposition plan that allows DTRA to “retain custody of its reports on the U.S. nuclear weapons stockpile for 80 years or more after they were created. Under the disposition plan, the reports will be transferred to NARA in five-year blocs 80 years after the last year of the block.”

The Archive’s Nuclear Vault director, Dr. William Burr, has an excellent post on the ill-advised action here. He argues that the drastic schedule is likely unnecessary considering that today’s nuclear weapons stockpile is “profoundly different” than that of the 1960s, and because the Obama administration declassified aggregate stockpile numbers for the period from 1962 to 2009 in 2010 (the numbers through 1961 were declassified during the Clinton administration). Burr also notes that NARA is more than capable of storing the sensitive files; the agency “already stores and secures records that are probably far more sensitive than the weapons reports.”

Burr succinctly argues that, “To ensure that these reports are preserved for the historical record while also being made available to researchers within a reasonable time period, DTRA should disclaim its original request for 80 years and begin an orderly process to accession the oldest reports to the National Archives.”

This isn’t the only incident of NARA considering inappropriate records schedules proposals – see here and here for more.

508 Compliance Not an Excuse to Remove Docs from Agency Websites

The Environmental Data and Government Initiative and the Sunlight Foundation recently reported that the National Park Service is removing climate action plans from its website because the 92 documents were not compliant with Section 508 of the Rehabilitation Act. An NPS spokesperson said the agency was working to make the documents accessible by the January 18, 2018 deadline, at which point they would be re-posted. (Section 508 has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities and that federal employees with disabilities can access records with the same ease as their counterparts since 1998. I have written about why Section 508 compliance is often a red herring for agencies who don’t want to post records to agency websites here, here, here, here, and here.)

NPS’s intention to make the documents accessible and 508 compliant is the right one, but making the documents inaccessible for everyone while working towards that goal is misguided. A better approach would have been for NPS to keep the documents online while working to make them 508 compliant.

The NPS’s decision comes as the Federal FOIA Advisory Committee approaches its January 16 meeting, where it will vote on, among other issues, the proactive disclosure subcommittee’s recommendations for agencies’ compliance with Section 508. First and foremost, the recommendations “encourage agencies to remediate documents that are not currently 508 compliant—documents that have optical character recognition are also much easier for all individuals to search through and utilize. Nevertheless, we discourage the removal of information from agency websites that is useful to the public, even if the information posted is not fully compliant with Section 508 of the Rehabilitation Act. Agencies should ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”

The recommendations can be found here.

FOIA Helps Reveal Govt’s Use of Parallel Construction

Human Rights Watch has a must-read report on “a growing body of evidence” suggesting that the government is “deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal.” The process is known as parallel construction.  The FOIA documents HRW examined included “historical documents posted in the online FOIA reading room of the Central Intelligence Agency (“CIA”); and trainings and other documents obtained under FOIA by the American Civil Liberties Union, the Electronic Frontier Foundation, and the journalist CJ Ciaramella.” One of the training notices obtained by Ciaramella and highlighted in the HRW report notes:

Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden’s satellite phone and then pin point his location, they don’t have to go to a court to get permission to put a missile up his nose.

We are bound, however, by different rules.

Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods.

To use it…., we must properly protect it.

Legal Fees over Contraception Coverage

A FOIA request from Buzzfeed News has won a series of settlement agreements showing that that the Trump administration “agreed to pay $3 million in legal fees and costs to settle lawsuits filed by the law firm Jones Day against the Obama administration over the Affordable Care Act’s contraception coverage mandate.” Jones Day, a firm with considerable ties to the Trump administration, initially sought $29 million. Buzzfeed notes that “The settlement agreements are part of a larger effort by the Trump administration to undo the contraception mandate and to work with groups that challenged it while Obama was in office.”

TBT Pick – The Yellow Book

This week’s #tbt pick is chosen with the recent Trump administration decision to end the protected status of 200,00 Salvadorians living in the U.S. since 2001 after earthquakes devastated the country in mind. This week’s pick is a 2014 posting on “The Yellow Book,” a 1980s-era document from the archives of El Salvador’s military intelligence that identifies almost two thousand Salvadoran citizens who were considered “delinquent terrorists” by the Armed Forces, among them current President Salvador Sánchez Cerén, a former guerrilla leader. The document was posted on-line, along with related analysis and declassified U.S. documents, through a collaboration between the National Security Archivethe University of Washington Center for Human Rights and the Human Rights Data Analysis Group (HRDAG).

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