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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.

 

ICE, Initially Citing No FOIA Exemption, Wrongly Denied Immigration Lawyers Access to their Clients’ A-Files: FRINFORMSUM 1/23/2020

January 24, 2020

Smith v. ICE

ICE Denied “Fugitive alien FOIA Requesters Access to the FOIA Process”

Judge William J. Martinez of the US District Court for the District of Colorado has ruled that Immigration and Customs Enforcement (ICE) violated FOIA by refusing immigration lawyers’ access to their clients’ Alien Files (A-Files). The order traces a convoluted, three-year case (Jennifer M. Smith v. U.S. Immigration and Customs Enforcement) that began in 2013 when immigration lawyer Jennifer Smith filed a FOIA request with U.S. Citizen and Immigration Services for her client’s A-File. The FOIA was referred to ICE, which responded in September 2015 stating, without citing a specific FOIA exemption, that “It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.”

Smith filed a FOIA lawsuit in August 2016, challenging the withholding and arguing that ICE’s position was a “pattern or practice” violation of FOIA, which requires agencies to cite one of nine specific exemptions as a justification for withholding information. ICE provided the requested documents shortly after the suit was filed, but Smith, working with the ACLU, continued the litigation, arguing that the suit “must prevent future violations of FOIA by ordering ICE to stop invoking its ‘fugitive’ practice entirely.”

In July 2017, ICE disclosed its new Standard Operating Policy (SOP) for responding to FOIA requests for A-Files, stating that “ICE FOIA may categorically withhold the fugitive’s law enforcement records or information pursuant to FOIA Exemption (b)(7)(A)”, which permits withholding records or information compiled for law enforcement purposes. ICE, which uses FOIAXpress as its FOIA processing software, calculated that it had sent this “Fugitive Practice” denial 333 times between July 21, 2017 and April 4, 2019.

Judge Martinez took issue with ICE’s defense of the SOP “as a proper categorical application of Exemption 7(A)”, ruling that “A proper categorical exemption applies at the document level, and not at the broader ‘file’ or ‘container’ level, unless the container only contains documents to which a proper categorical exemption applies.” Martinez went on to note that, “there is no genuine dispute of fact that ICE is impermissibly attempting to apply Exemption 7(A) at the container level.” The judge concludes by ruling, “Smith has thus carried her burden to show that there is no set of circumstances under which the SOP is lawful under FOIA.”

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OMB FOIA Release of Ukraine Documents

The Office of Management and Budget has released 129-pages of documents in response to a FOIA request concerning the office’s efforts to carry out President Trump’s order to freeze military aid to Ukraine. Two oversight organizations, American Oversight and the Center for Public Integrity, obtained the documents at the same time Senate Republicans blocked Democrat’s efforts to subpoena new evidence – including some of the information that OMB released through FOIA – in President Trump’s impeachment trial. The documents show growing tension between the Defense Department and the White House as the freeze dragged on, “and the confusion and surprise when members of Congress, including some prominent Republicans, learned that the military assistance to Ukraine had been held up.”

The released documents were heavily redacted pursuant to FOIA’s Exemption 5, often called the “withhold it because you want to” exemption. The Exemption protects agencies’ “deliberative process” privileges, a wide carve-out that allows agencies to withhold “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public.

“Lawyer” Lawsuits

President Trump’s personal attorney, Jay Sekulow, had an embarrassing flub on January 21 during the impeachment trial. Sekulow apparently misheard Rep. Val Demings (D-Fla.), one of the House impeachment managers, when she said, “The president’s lawyers may suggest that the House should have sought — that this House should have sought these materials in court, or awaited further lawsuits under the Freedom of Information Act, a.k.a. FOIA lawsuits,” going on to say that third-party FOIA lawsuits cannot be a “credible alternative to congressional oversight.”

What Sekulow heard was another matter, mistaking the phrase “FOIA lawsuits” for “lawyer lawsuits,” despite the context. He said, “And by the way — lawyer lawsuits? Lawyer lawsuits? We’re talking about the impeachment of a president of the United States, duly elected, and the members — the managers are complaining about lawyer lawsuits? The Constitution allows lawyer lawsuits. It’s disrespecting the Constitution of the United States to even say that in this chamber — lawyer lawsuits.”

The White House stood by Sekulow’s mistake, and its legislative affairs director, Eric Ueland, told reporters, “When you read the transcript it says ‘lawyer lawsuit.’” It is unclear to what transcript Ueland is referring.

Government Denies Expedited Processing of Soleimani Killing FOIA

Reporter Isaac Arnsdorf tweeted a picture of the Justice Department’s rationale for denying expedited processing of his time-sensitive FOIA request. Arnsdorf requested expedited processing for his FOIA request to the Office of Legal Counsel for “final legal advice in [OLC] since June 20, 2019, on killing Qasem Soleimani.” Despite the fact the administration has yet to provide an official legal justification for the strike that killed the Iranian general in Baghdad, a move that led to a tense-standoff between the United States and Iran that resulted in Iran mistakenly shooting down a Ukrainian passenger jet and killing all aboard, the DOJ’s public affairs director Kerri Kupec denied the request. The DOJ argued that, in its view, the killing was not a matter “in which there exist possible questions about the government’s integrity that affect public confidence.”

USCYBERCOM FOIA Release Sheds Light on Operation to Hack ISIS

This week the National Security Archive’s Cyber Vault released six new USCYBERCOM documents that shed light on the campaign to counter ISIS in cyberspace. The documents, which were obtained through FOIA, include a discussion of assessment frameworks to the 120-day assessment of Operation GLOWING SYMPHONY, reveal the unprecedented complexity of the operation, resulting challenges in coordination and deconfliction, and assessments of effectiveness.

CyberScoop’s Shannon Vavra writes that while the documents show the operation was largely successful, they also show “there were significant shortcomings, including operators having trouble collecting data, interagency deconfliction issues, difficulty vetting targets, and, in at least one case, a close call with the operation being discovered by the adversary.” And the Washington Post’s Joseph Marks’ says the documents “paint the most vivid portrait to date of the complex challenges facing U.S. military hackers as they develop rules for a new domain of warfare.”

Read the documents and the rest of the media coverage at the National Security Archive.

The Joint Chiefs of Staff during the Moorer years (copy from Naval History and Heritage Command).

Nuclear War Planning and the Challenge of Civilian Oversight

In an unusual episode in the early 1970s, the Joint Chiefs Staff tried to keep Defense Secretary Melvin Laird in the dark about an aspect of secret nuclear targeting policy involving China, according to a recently declassified archival document requested by the National Security Archive. Laird only discovered the attempt by accident.

On 24 February 1972, the Joint Chiefs mistakenly copied Laird on a message concerning ongoing efforts by military planners to develop a “Communist Chinese Nuclear Package” for the Single Integrated Operational Plan, the Pentagon’s nuclear war plan. The message not surprisingly “displeased” Laird for a number of reasons. For one, it bypassed a civilian-directed target planning review that he had already initiated. For another, its timing coincided with President Richard Nixon’s first visit to China, which was underway that same week.

The incident sheds some fascinating light on the conduct of nuclear planning during the Nixon administration and is also an interesting reflection on the broader military-civilian relationship in the area of sensitive nuclear matters. Read the document in our Nuclear Vault.

Iran-U.S. Relations – Assessing the Future by Reviewing the Past

January 16, 2020

Foreign Minister Mohammad Javad Zarif and Secretary of State John Kerry shake hands after signing an interim deal on Iran’s nuclear program, Geneva, November 24, 2013 (photo from theiranproject.com)

National Security Archive’s New Declassified Documents Publication Offers Historical Context for Current Crisis

As 2020 gets underway, tensions between the United States and the Islamic Republic of Iran have once again been dominating the headlines. A series of violent flareups – most recently the U.S. killing of Iranian General Qasem Soleimani and Iran’s retaliation against two Iraqi military bases housing American forces – have renewed fears of an escalation to direct armed conflict.  The worry is that such a conflict will engulf the Middle East and create both global political instability, through increased terrorist attacks, and economic crisis in the event of a blockade of the Strait of Hormuz or strikes against oil facilities in the Persian Gulf.

A look back at the 40 years since the Iranian revolution of 1978-1979 – made possible by a new major documentary publication by the National Security Archive – offers some useful historical context that helps to explain the depths of American-Iranian official antagonism but also may provide some hope for extricating the two sides from what is in many ways just the latest confrontation between the two governments.

The Archive’s new publication, U.S. Policy toward Iran: From the Revolution to the Nuclear Accord, 1978-2015, is the most recent in the subscription series The Digital National Security Archive, published by the academic publisher ProQuest.  It consists of 1,760 documents and almost 14,000 pages of materials, most of them made available through the Freedom of Information Act (FOIA) or through research at various archives.

Sultan Qaboos.

A selection of highlights from the collection appeared in a recent Archive e-book that can be read here. They include Top Secret memos to presidents, assessments of the Iran-Iraq War and U.S. awareness of Iraq’s use of chemical weapons, records of U.S. and Iranian attempts to communicate including a direct message from Bill Clinton to Mohammad Khatami, Bush 43 records on Iran’s role in the Afghan Conference, queries from Donald Rumsfeld about Iran’s strategy in Iraq, and materials relating to negotiating the JCPOA.

What do the documents in this new collection, and the broad history of U.S.-Iran relations, show?  The following are some examples based on the newly published materials.

Sultan Qaboos bin Said Al-Said of Oman, here in conversation with President George H.W. Bush, played a key role over many years as an intermediary between the United States and Iran. The Sultan died in January 2020.

On the surface the documentation forms a portrait of seemingly unrelieved hostility, beginning with the revolution itself, which exposed the depths of Iranian animosity not only toward Shah Mohammad Reza Pahlavi, whose rein had followed a steady arc toward oppression and dictatorship as the years went on, but against the United States for its support of the Shah (starting with his restoration to the throne in 1953 thanks to a coup fomented with American and British help).

A period of tensions through most of 1979 turned ugly in November when Iranian students and others overran the U.S. Embassy and took dozens of American officials and military personnel hostage.  That 444-day crisis has been at the heart of the American narrative about the Islamic Republic ever since and according to recent media reports was one of the motivations for President Donald Trump’s decision to respond sharply to demonstrations in front of the U.S. Embassy in Baghdad in late December 2019, out of fear it could lead to a similar crisis.

Portions of Zbigniew Brzezinski’s December 21, 1979 memo to President Carter, including Carter’s handwritten notes.

In hopes of ending the earlier drama, President Jimmy Carter mounted a rescue attempt in April 1980 that instead culminated in fiery disaster when two American aircraft collided in the Iranian desert before the operation could fully get underway.  Ever since, that failure has loomed over the thinking of military strategists who have been tasked by different presidents with coming up with options for military operations against Iran.  In addition to the stark logistical challenges, presidential aides have typically pointed to the unknowns and risks in terms of Iranian retaliation in advising the White House to steer clear of the temptation to use brute force against Tehran.  Like his predecessors, President Trump by most accounts – and against the expectations of numerous observers – seems to have accepted that line of argument over the past year as he has opted more than once not to strike directly at Iranian targets, at least for now.

For their part, Iran’s leaders have developed a narrative concerning U.S. bad behavior.  That image, formed over the years prior to the revolution, hardened significantly in the 1980s when Tehran was at war with Saddam Hussein’s Iraq.  As the documentary record shows, Iran took great umbrage at most of the world’s lack of outrage following Baghdad’s attack in September 1980, at Western and Russian supplies of military materiel to Iraq, and at the perceived lack of indignation at Saddam Hussein’s use of chemical weapons (with targeting assistance from the U.S.).  For Washington, concerns about the threat Iran posed to Western interests significantly outweighed that presented by Iraq.  This became the justification for repeatedly and progressively siding with Saddam Hussein, a pattern that has been forgotten or obscured by Iraq’s subsequent aggressions and U.S. military operations against Baghdad in the early 1990s and starting in 2003.

Two sets of events from the Iran-Iraq War of the 1980s resonate particularly strongly in today’s environment. The first started in Summer 1987 when the U.S. Navy began to escort Kuwaiti oil tankers through the Strait of Hormuz as a way to ensure the safe transit of petroleum to the West.  That September, the U.S. discovered an Iranian ship laying mines in the Gulf, which led to a brief firefight and the destruction of an Iranian offshore oil platform.  In April 1988, the U.S. determined Iran was at it again.  This time the Navy responded by striking two more oil platforms which the Iranians were using as operational bases. Iranian small vessels retaliated against overwhelmingly larger American forces, which in turn responded by sinking several Iranian ships.

The mining incidents and missile strikes against international shipping in the Gulf and Saudi oil facilities in Spring and Fall 2019, which the U.S. charged Iran was responsible for, have recalled those earlier episodes, ramping up fears of a dangerous direct conflict.

This “snowflake” memo from SecDef Donald Rumsfeld, written several weeks after George W. Bush declared “mission accomplished” in Iraq, anticipates the kinds of actions by Iran that would eventually be put forward as a key rationale for killing Qasem Soleimani.

The other event from the Iran-Iraq War with an almost eerie parallel to today was the July 1988 shooting down of a civilian Iranian airliner by the U.S. Navy cruiser USS Vincennes in the Gulf.  The U.S. has always maintained it was an accident and subsequently gave the ship’s commander an end-of-tour award.  The Islamic Republic immediately concluded the attack was deliberate and has held it out ever since as proof of American ruthlessness.  When a Ukrainian civilian airliner went down over Iran in early January 2020, the regime was eventually forced to admit that its own missiles had shot the plane down.  A substantial number of Iranian students were among the victims which prompted bitter protests in the country.  In 1988, the Iran Air tragedy ironically helped persuade Tehran’s leadership that it was time to end the war with Iraq, in part because of the conclusion that they were also fighting the United States.  It remains to be seen whether the latest calamity will also move the Islamic Republic to pull back in some way, perhaps through some combination of a sense of overwhelming odds and the ramifications of continuing public distress.

Throughout the four decades since the Iranian revolution, both the U.S. and Iran have routinely exchanged charges against each other.  Washington has pointed to events such as the 1983 Marine barracks bombing in Beirut, kidnappings in Lebanon, the 1996 Khobar Towers bombing in Saudi Arabia, violent attacks from Berlin to Buenos Aires, and general support for proxies including Hezbollah and Hamas as signs of Tehran’s bad intentions and support for international terror.  The Islamic Republic in turn accuses Washington of pursuing its own brand of terror including imposing hegemony on the region, fomenting regime change in Iran, and supporting actors hostile to Tehran, from Israel to the MEK.

Yet, as the documents show, the past 40 years have also featured regular attempts beneath the surface by both sides to break through the political permafrost when it has suited them.  In the months after the Shah’s 1979 flight into exile and Ayatollah Khomeini’s return to Tehran, the Carter administration tried hard to build ties to the new centers of power in Iran, albeit unsuccessfully.  During the ensuing hostage saga, Washington worked with many intermediaries to try to resolve the crisis. Just a few years later, facing his own hostage predicament, President Ronald Reagan approved the covert trade of arms for Americans being held by Hezbollah in Lebanon. Observers dismissed the Iran-Contra affair as an aberration but underlying it was a much broader sense (as revealed in internal U.S. files) within the U.S. government of the desirability of finding a way to restore closer ties with Iran, despite the mutual hostility. Reagan’s successor, President George H.W. Bush, also tried to work with Tehran.

A new phase of the relationship (if it can be called that) opened with the election of Mohammad Khatami as president of Iran in 1997.  President Bill Clinton tried repeatedly for a breakthrough, but a combination of domestic and international political factors hampered both sides’ attempts. Iran’s interest in improving relations showed through once again in the period after 9/11 when Tehran was one of the first world capitals to express public condolences to the United States.  More substantively, Iranian and American negotiators in Afghanistan worked cooperatively as part of the international process of putting together a new Afghan constitution.  Those positive steps were nullified at least temporarily by President George W. Bush’s branding of Iran as part of an “Axis of Evil” in January 2002.  Still, American and Iranian officials found common ground in both Iraq and Afghanistan as they attempted to establish regional stability and eradicate Sunni-based terrorism. Recent accounts by then-Ambassador Ryan Crocker and others indicate that Qasem Soleimani himself was at times a willing partner in that process.

The most high-profile bilateral attempt to reach accord on matters of major mutual interest occurred during the presidencies of Barack Obama and Hassan Rouhani.  The 2015 Joint Comprehensive Plan of Action focusing on Iran’s nuclear program had many critics but was a landmark agreement that showed what could be achieved even by two such unfriendly parties. As so often happened over the course of the relationship, a combination of events on the ground, domestic political considerations, and other factors got in the way of a more permanent accomplishment.

Yet even Donald Trump, despite his harsh rhetoric and actions such as tearing up the JCPOA and imposing extensive sanctions, has stated openly he would be willing sit down and talk with his Iranian counterparts – without preconditions.  Public statements by some of his advisers, notably Secretary of State Mike Pompeo’s May 2018 enumeration of a dozen demands for “major changes” by Iran, directly contradict the president, but the evidence to date suggests that at least until the killing of Soleimani Trump has been far less enamored of taking the kinds of military steps his hardline advisers have been promoting.

Even in the case of the Soleimani strike, Trump has followed a pattern set by his predecessors – establishing a red line at the killing of Americans. In early 1985, for example, Ronald Reagan – against the advice of his aides – insisted on hitting Iranian targets directly if any American hostages were killed.  Bill Clinton ordered large-scale plans for attacking Iran if it could be proven Iran’s leaders was behind the Khobar Towers bombing that killed 18 American servicemen.  (Clinton backed off after Khatami’s election because of the prospects for a rapprochement – one of many fascinating subplots outlined in the declassified record.)  Where Trump has taken a different approach is in claiming credit for Soleimani’s death.  In the past, the targeting of each other’s personnel or facilities has more typically been done behind the fig leaf of official deniability.

“Like that.” Preoccupied with American hostages in Lebanon, President Ronald Reagan was ready to strike Iranian targets directly if any harm were to come to the captives. This was several months before embarking on the widely criticized arms-for-hostages deals with Iran.

Where are events headed?

Based on a reading of the available record, it is clear that U.S.-Iran relations have been far more complex than they appear on the surface.  Despite the trademark “Death to America” chants and similarly acrimonious rhetoric from various American administrations and Congress, each side at one point or another has found it in its interests to seek common ground with the other.  Even when tensions have skyrocketed and war has seemed imminent, both governments have managed to pull back, sharing another common feature – a very rational desire not to become embroiled in a bloody direct conflict that could easily dwarf anything either side has experienced for many years.

On a less optimistic note, the record also shows that despite these intentions on the part of the leaders of both countries, a variety of factors continue to pose potentially serious hazards for the region.  Among these are a substantial degree of ignorance about the other side (its history, culture, politics, and decision-making) and a dearth of avenues for direct contact.  Both are a result of the absence of formal diplomatic ties, which the U.S. has found a way to justify with virtually all of even its most reviled adversaries in the past, but not with the Islamic Republic.  Another factor is the impact of domestic politics and the sharpening of political divides, particularly in the United States. Time and again, hardliners in both countries’ security apparatus and parliaments, for example, have torpedoed efforts to work toward a lessening of tensions.

A third, somewhat related, dynamic that has come into play is the preoccupation with showing strength over weakness. The historical record includes several examples of this from Carter forward to Trump.  One of the most notable was the submission of a “road map” for better relations by Iran in the wake of the U.S. invasion of Iraq in 2003, which the American side dismissed at least in part because it was seen as proof that Iran was now in a weakened position and did not present an obstacle to American plans.  Other issues came into play including U.S. uncertainty over the authenticity of the document, sent via the Swiss ambassador (who remains the principal go-between with Iran in the current crisis), but the instance is one of several that raise fascinating questions about what might have been, especially in the light of how Iran’s position has strengthened by orders of magnitude since that time.

Finally, events on the ground make up a very concrete, additional source of continuing mutual antagonism, which may yet contribute, along with the other circumstances above, to an open explosion in the region.  Mistrust based on all these factors has been a persistent feature in both governments for many years, but so have a certain underlying rationality and sense of self-interest, despite perceptions on both sides.  The unpredictable interplay of these conflicting elements is a core reason why most Iran experts find it so difficult to foretell the future of the U.S.-Iran relationship.

Unredacted Ukraine Emails Show FOIA Exemption 5 Abuse, Court Rules Contractor Diversity Data Can’t be Hidden by Exemption 4, and More: FRINFORMSUM 1/13/2020

January 13, 2020

Unredacted Ukraine Emails Cast Doubt on Exemption 5 Invocation

A recent Just Security article from Citizen and Responsibility for Ethics in Washington’s (CREW) Anne Weismann provides a powerful argument for reforming FOIA Exemption 5, often called the “withhold it because you want to” exemption, “to mirror how the deliberative process privilege is treated in the discovery context.” Such a reform would require agencies and the courts to balance the “quality of [the government’s redaction] decisions against the public’s interest in disclosure.” (Exemption 5 is a discretionary exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public.) Weismann compares a series of emails from key Defense and administration officials that were blanketed in Exemption 5 redactions and released in response to a court order to unredacted versions of the same emails that were obtained by Just Security to make her case. The unredacted versions “suggest the government invoked Exemption 5 not to protect an internal deliberative process, but to keep from the public compelling evidence of the president’s misconduct and abuse of power and the complicity of administration officials in his actions.” Weismann goes on to argue that Congress should “provide the public with a more effective tool by reforming the FOIA to ensure the public’s interest in requested documents factors into an agency’s and reviewing court’s consideration.”

Kandis A. Westmore

Court Says Contractor Diversity Data Can’t be Hidden By Exemption 4; Government Failed to Satisfy Foreseeable Harm Burden

U.S. District Court Judge for the Northern District of California, Judge Kandis A. Westmore, has ruled that the Labor Department must release federal contractor workforce demographic data in response to a FOIA request. Agency attorneys tried to argue that the contractors’ diversity data is commercial and would result in financial harm if released, and was therefore properly withheld under FOIA’s Exemption 4, but the court rejected that argument. The decision is the first to require a federal agency to disclose employer information following the Supreme Court’s June 2019 ruling in Food Marketing Institute v. Argus Leader Media, a ruling that broadened the scope of Exemption 4.

Judge Westmore also notably ruled that, “Even if the information was exempt, the Government has failed to carry its burden of showing that foreseeable harm would result should the documents be released.” Westmore goes on to note, “The foreseeable harm standard prohibits agencies from withholding information unless (1) the agency reasonably foresees that disclosure of the record would harm an interest protected by an exemption, or (2) the disclosure is prohibited by law. 5 U.S.C. § 552(a)(8)(A)(i) . Consequently, even if information falls within the scope of a discretionary exemption, it cannot be withheld from the public unless the agency also shows that disclosure will harm the interest protected by that exemption. Id .see also Judicial Watch, Inc. v. U.S. Dep’t of Commerce375 F. Supp. 3d 93 , 98 (D.D.C. 2019).”

Dismantling of ToxNet and Retiring of ToxMap is a Step Backwards for Environmental Transparency

The National Library of Medicine has retired ToxNet, the Toxicology Data Network that served “as an integrated system of toxicology and environmental health information.” While some databases will be incorporated into other resources in order to comply with the Emergency Planning and Community Right-to-Know Act, TOXMAP, “the revelatory environmental mapping tool” that allowed Americans to see what toxins were released in every zip code across the United States – in addition to associated health risks – will not find a new home. ToxMap began in 2004 to share information from the Environmental Protection Agency, and, “As the interface improved over the early 2010s, the NLM also added geographic information on cancer (from the National Cancer Institute) and mortality rates (from CDC’s National Center for Health Statistics), thereby adding to the factual contexts which ToxMap could furnish to help communities frame an effective understanding of their environmental dilemmas and concerns.”

Visit the Environmental Data and Government Initiative website for a comprehensive report on the history of ToxMap and how it fits into a “larger pattern of decreasing transparency of environmental data during the Trump era.” (The New York Times also maintains an updated list of environmental rules and regulations that have been rolled back under the Trump administration – the count as of writing this is 95.)

Interior Dept. FOIA Overhaul Continues

Interior Department Secretary David Bernhardt has approved (pursuant to Oder No. 3378) a slew of changes to the agency’s FOIA program, including “Establishing a FOIA Litigation Unit and consolidating FOIA litigation activities”. GreenWire points out that the order also establishes a new Departmental FOIA Office, puts FOIA personnel (identified as Interior employees with any role in processing or reviewing records) under direct control of the Office, and “states that the FOIA office can ‘assert control over any aspect of any FOIA request.’”

While Interior says the changes are necessary to respond to a drastic increase in FOIA requests to the agency, advocates worry that the realignment will place the FOIA process more firmly in the hands of political appointee and Interior Solicitor, Daniel Jorjani, whom Sen. Ron Wyden (D-Or.) accused of perjuring himself before the Judiciary Committee when discussing the agency’s controversial new “awareness review” policy for FOIA requests. (The awareness review policy allows political appointees to review records to be released under FOIA – and the discretion to say which documents should or shouldn’t be released.)

DoD Begins Classifying Southwest Border Orders

The Defense Department is now classifying requests for assistance from the Department of Homeland Security for continued support at the U.S.-Mexico border. The orders have historically been unclassified. Newsweek reports that the policy shift comes from Lieutenant General Laura J. Richardson and is “in response to negative news coverage and leaks of border documents under U.S. Army North’s previous commander, Lieutenant General Jeffrey S. Buchanan.” Newsweek also cites Pentagon sources saying verbal commands have increased under Richardson’s tenure, ostensibly to avoid creating a paper trail; one Customs and Border Protection official said that while Buchanan aimed to keep as much of the border mission unclassified as possible, Richardson said “Move the mission to SIPR.” (SIPRNet is the DoD and State Department’s classified network.)

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Rumsfeld Memos Won by NSArchive Play Key Role in “The Afghanistan Papers”: FRINFORMSUM 12/13/19

December 13, 2019

Rumsfeld Memos Play Key Role in “The Afghanistan Papers”

Donald Rumsfeld’s “snowflakes” – memos that the former Secretary of Defense was as fond of sending subordinates as President Trump is of tweeting – play an important role in the Washington Post’s massive exposé on the Afghanistan war, The Afghanistan Papers. The series draws on both “lesson learned” interviews conducted by the Special Inspector General for Afghanistan Reconstruction, as well as Rumsfeld’s “snowflakes” that were obtained by the National Security Archive and provided to the Post (both the interviews and the snowflakes were obtained through FOIA lawsuits).

Several of the snowflake highlights include:

  • An April 17, 2002 snowflake, Subject: Afghanistan, in which Rumsfeld states “We are never going to get the U.S. military out of Afghanistan unless we take care to see there is something going on that will provide the stability necessary for us to leave. Help!” (From “At War With the Truth”)
  • An October 21, 2002 snowflake, Subject: Meeting with President, that shows Afghanistan had become an after-thought as the George W. Bush administration plodded towards the invasion of Iraq. Rumsfeld asked the president if he wanted to meet with Army Lt. Gen. Dan McNeill, who had been the commander of US forces in Afghanistan for six months. “He said, ‘Who is General McNeill?’ I said he is the general in charge of Afghanistan. He said, ‘Well, I don’t need to meet with him.’” (From “Stranded Without a Strategy”)
  • An April 1, 2002 snowflake, Subject: Warlords, that would be a harbinger for US-sponsored corruption among Afghan warlords. Rumsfeld writes, “It seems to me the interagency group ought to have a plan for how we are going to deal with each of these warlords – who is going to get money from whom, on what basis, in exchange for what, what is the quid pro quo, etc.” On June 26, 2002 Rumsfeld followed up with the question, “Is the DoD giving any food, weapons or money to any of the warlords or to Karzai? Is the CIA doing that? Is State doing it? How are the donor funds coming in? We need to get a sense of the balance.” (From “Consumed by Corruption).

NDAA Declassification Provisions

Two provisions of the House-Senate conference version of the FY2020 National Defense Authorization Act could be good news for researchers (thanks to Steve Aftergood for highlighting them in his Secrecy News blog). The first provision would require the Defense Department to plan how it will meet its declassification requirements, including for “legally mandated historical declassification, and reduce its backlog. (Language in the House bill that would have required similar reports from the State Department and the CIA were dropped from the final bill.) The well-meaning provision is not accompanied by any new funding for declassification or development of new technologies, however, and does not specify what happens if the DOD fails to meet its goals.

The second provision requires the DOD to produce an unclassified report on nuclear weapons programs in the US, China, and Russia. This is a welcome development after the DOD stopped releasing the current size of the United States’ nuclear stockpile, which it had been releasing annually since 2010.

While the declassification provisions are welcome, other components of the NDAA are not. The Reporters Committee’s Melissa Wasser writes that the expansion of the Intelligence Identities Protection Act “could indefinitely criminalize the disclosure of the identity of ‘covert agents,’ regardless of whether the disclosure would present a risk of harm.” In July, the National Security Archive joined Reporters Committee and 27 other open government groups asking Congress to remove the provision criminalizing reasonable disclosure.

The House voted to pass the NDAA on December 12, sending it to President Trump for a likely signature.

Trapped in the Archives: The U.S. Government’s System for Declassifying Historical Documents is in Crisis

The government’s processes for declassifying historical records are antiquated at best, and the entire system threatens to buckle under the weight of terabytes of incoming electronic records, this according to Archivist William Burr’s recent must-read Foreign Affairs article. Burr lays out a number of the systemic failures – from Congress not adequately funding key records management agencies, like the National Archives and Records Administration, to individual agencies compounding resource constraints with needless secrecy.

These problems, in addition to being a headache for requesters and FOIA processors, are bad for America’s self-governance. As Burr notes, “Declassification is vital to a thriving democracy. Not only does it help the public hold leaders accountable; it also allows for a more accurate and comprehensive accounting of the past… Only by unsealing its archives can the United States live up to its ideals as an open society and learn from its past.” And perhaps the best first step to unsealing the archives is for Congress to increase NARA’s budget; other suggestions include establishing advisory panels at key agencies like the Defense Department and CIA, requiring the DOD to create a centralized FOIA processing system, and forcing agencies to treat ISCAP declassification decisions as binding precedent.

New Digital National Security Archive Document Collection Covers US Policy toward Iran from 1978-2015

An extensive new Digital National Security Archive collection covering US policy towards Iran from the Carter through Obama years is now available! Most of the documents in the 1,761-document collection (produced with our partners at ProQuest) were obtained through FOIA and have never been published elsewhere.

The extensive breadth and depth of the set encompasses all major events of importance, such as Shah Mohammad Reza Pahlavi’s flight from Iran during the revolution which ultimately led to the 444-day hostage crisis, the Iran-Iraq war of 1980-1988 that continues to shape the narrative of Iran’s rulers, Iran’s explosive internal political scene during the 1990s, and the more recent post 9-11 landscape where terrorism and the nuclear issue have been the main drivers of global concern.

Nuclear Weapons and Ukraine: American, Ukrainian, and Russian Cooperation Eliminated World’s Third Largest Nuclear Force in 1990s

The global threats faced by the ICBMs, strategic bombers, and nuclear warheads that were left in Ukraine when the Soviet Union dissolved in 1991, were eliminated by cooperation between the US, Ukraine, and the Russian Federation – this according to declassified documents recently published by the Archive.

The documents detail the intensive trilateral diplomacy over Ukraine’s nuclear legacy beginning even before December 1991 and describe the vital role played by the Nunn-Lugar initiative. According to Tom Blanton and Svetlana Savranskaya, the posting also “directly addresses current narratives in all three countries that are historically misleading. In the U.S., the impeachment controversy features almost total amnesia about the extraordinary contribution to U.S. national security made by Ukraine’s decision to disarm, removing over 1,900 strategic weapons targeted on the U.S. In Russia, the new nationalist discourse dismisses the Nunn-Lugar cooperative threat reduction as forced disarmament, forgetting that the consolidation of the Soviet nuclear legacy in Russia directly served Russia’s security interests. In Ukraine, nostalgia for nuclear status is on the rise, fueled by the Russian annexation of Crimea and war in Donbas, while ignoring the enormous costs to Ukraine (diplomatic, financial, environmental, and more) had nuclear weapons been retained in the 1990s.”

Peter Kornbluh Interviews Chile’s Mónica González

The Archive’s Chile Documentation Project director, Peter Kornbluh, recently interviewed Chilean journalist Mónica González about the ongoing protests in Chile for The Nation. Chileans are protesting economic inequality (the country is one of the 20 most unequal in the world despite its economic prosperity), corruption, and an array of government abuses. Government forces have killed more than 22 people, blinded more than 200 with rubber bullets, injured more than 2,000, and arrested more than 6,000 since the protests began. Read the wide-ranging interview here.

ISCAP Releases NSSE Order

This week’s last item comes from FRINFORMSUM reader Austin Nolen, who recently received a previously-classified 2007 George W. Bush administration order on reforming National Special Security Event authorities from the Interagency Security Classification Appeals Panel (ISCAP). (NSSEs are events – like the upcoming Republican and Democratic National Convention – that the Department of Homeland Security deems important enough to be a potential target for terrorist or criminal activity.) As Austin notes, “The document references back to Bush HSPD 7, unclassified, which appears to be the first time the DHS Secretary received NSSE designation authority, which had previously been given to the [Attorney General] and Treasury when NSSEs were first created by Clinton in NSC-62.” Thank you very much to Mr. Nolen for making these available to Unredacted and its readers!

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New Digital National Security Archive Document Collection Covers U.S. Policy toward Iran from 1978-2015

December 12, 2019

Hostage Crisis

The National Security Archive, in conjunction with our partners at the scholarly publisher ProQuest, is publishing a new set of documents offering an unprecedented look into United States policy towards Iran from the Carter administration to the Obama years.

The extensive collection, U.S. Policy toward Iran: From the Revolution to the Nuclear Accord, 1978-2015, covers nearly four decades of a highly volatile relationship that continues to cause tremors in world politics. The extensive breadth and depth of the set encompasses all major events of importance, such as Shah Mohammad Reza Pahlavi’s flight from Iran during the revolution which ultimately led to the 444-day hostage crisis, the Iran-Iraq war of 1980-1988 that continues to shape the narrative of Iran’s rulers, Iran’s explosive internal political scene during the 1990s, and the more recent post 9-11 landscape where terrorism and the nuclear issue have been the main drivers of global concern. The set concludes by focusing on the landmark – albeit short-lived – JCPOA, the 2015 nuclear deal between Iran and the so-called P5+1.  This wide variety of mostly never-before-seen material considers the full range of issues that have divided the two countries since the revolution.

Many of the records in the 1,761-document collection have never been published elsewhere. Among the newly declassified materials in the set are documents on the 1980s Iran-Contra scandal that have not been widely available prior to this publication. The expertly-curated set also features other invaluable subsets, such as every available meeting summary of the Special Coordination Committee on Iran during the Carter presidency, every known record of telephone conversation between Gen. Robert Huyser (Carter’s envoy sent to Iran at the height of the revolution in early 1979 to assess the mood of the military) and the Pentagon, and every presidential Executive Order on Iran.

Many of the documents in this collection were obtained through Freedom of Information Act requests or from other relatively obscure sources. They include:

  • The State Department’s so-called “White Paper” (a previously classified internal history ordered by President Carter in anticipation of proceedings before the World Court)
  • Warnings from embassy staff in Tehran in mid-1979 regarding admitting the Shah to the United States for medical treatment
  • Documents relating to the aborted 1980 hostage rescue mission
  • The previously Top Secret version of the Holloway Commission report (investigating the rescue attempt)
  • Highly confidential, top-level memoranda from the Reagan and Carter administrations
  • A 1999 letter from President Clinton to President Khatami
  • A version of the 2003 “Road Map” memo from the Iranians, via the Swiss ambassador, conveying proposals for a comprehensive improvement of relations
  • A fascinating, formerly classified, internal study for the CIA assessing the failure to predict the Iranian revolution (with accompanying reactions from CIA staff)

Beyond the scope of U.S. Iran policy making, the set also includes materials relating to domestic political developments in each country, as well as the consequences for regional states such as Afghanistan and Saudi Arabia. These records will enrich those studying United States policy towards the Middle East, United States crises management, Iranian relations with Saudi Arabia and the Gulf Cooperation Council, and Iranian policies and actives in Afghanistan and Iraq, to name a few.

While covering a wide range of topics, this collection has avoided duplicating any materials from previous Digital National Security Archive publications on Iran, such as Iran: The Making of U.S. Policy 1977-1980, The Iran-Contra Affair: The Making of a Scandal, 1983-1988, Terrorism and U.S. Policy, 1968-2002, and U.S. Intelligence on Weapons of Mass Destruction: From World War II to Iraq. Documents from every principal agency involved in Iran policy are included. Additionally, the set features an array of hard-to-find Iranian source materials in the form of statements, interviews with officials, and occasional memoir accounts, as well as records from the British archives, and elsewhere.

Check out this new DNSA collection, or arrange for a free trial here if your library does not currently have a subscription.

 

Mexican Community Seeks Help in Mining Conflict

November 27, 2019

Pictures of the Peñasquito mining operation in Cedros, Zacatecas, courtesy of Red Solidaria.

by Olivia Mozdzierz

New York, November 26, 2019 – Representatives of a community of Mexican ejidatarios (communal landowners) from north-central Mexico met recently with the National Security Archive in our New York office to tell us about their ongoing struggle with a foreign mining company over land, water, and industrial pollution. They sought assistance from the Archive in gaining access to official information that could aid their campaign for attention, support, and redress from national authorities and global audiences.

The group from Cedros, a small, rural community in the Mexican state of Zacatecas that has been effectively taken over since 2006 by the U.S. Newmont Goldcorp polymetallic mine, told us that community members entered into a rental agreement with the mine without legal counsel and only later realized what they now view as the company’s predatory intent. According to news reports, the agreement provided 50,000 pesos to each ejidatario – or roughly $2,600 USD – for rent for 30 years. The sum amounts to about $85 per person, per year, for three decades of use of the land. Newmont Goldcorp stands to make hundreds of millions of dollars in profits.

Meanwhile, the environmental impact of the mine on nearby communities – including Cedros, El Vergel, Mazapil, and Cerro Gordo – has been devastating. The local water supply is reportedly heavily polluted and has caused skin and eye infections, as well as other illnesses. The Cedros team explained that people must now purchase their drinking water – a stark contrast for a region where communities drew their water from clean wells for hundreds of years. Agricultural land is also now polluted by the chemicals from the mines, damaging fields and making crops useless. According to the team and most media accounts, the mining company has failed to provide any real solutions or compensation for the damage.

On their October visit to the National Security Archive’s New York office, the Cedros group included Magdalena López Paulino from Red Solidaria Década contra la Impunidad, a national human rights and anti-impunity organization, along with local human rights advocates from Zacatecas and Coahuila, lawyers and community members. López Paulino explained that the Red Solidaria had scheduled meetings with the Inter-American Commission for Human Rights as well as non-governmental human rights groups, U.S. congressional offices, and the press to try to raise awareness about the abuses faced by residents of the affected area. (Read the call for Urgent Action by Red Solidaria here.)

In response to these abuses, Cedros community members have staged blockades and protests to demand the observance of their rights to land and health. They have effectively shut down the mine for months at a time twice during 2019. Recently, however, promises of help from the Zacatecas state government have given way to a harder line from the governor, resulting in the threat of police or military action against protestors as well as prosecution of community leaders. As a result, protesters were forced to abandon their latest blockade on October 27 and are now engaged in negotiations with Newton Goldcorp. They remain disillusioned by the company’s response.

Photographed (right to left): Kate Doyle, Felipe de Jesús Pineda Hernández, Juan Anastacio López López, Irma Judith García Ruíz, Ie Tze Rodríguez López, Karina López Puentes, Deeni Rodríguez López, María Magdalena López Paulino, Olivia Mozdzierz

Karina López Puentes, one of our visitors and a resident of the affected region, underscored the problem of corruption as one of the major obstacles they face, maintaining that “it is a very corrupt area, so despite the ongoing fight for change, nothing has been done. The community is looking for help, for people to listen and spread the word.”

Unfortunately, the situation in Cedros is an example of a much bigger issue throughout the region where the extractive industry has come into conflict with local communities. According to media accounts and NGO reporting, tensions are rising in Guatemala, El Salvador, and Nicaragua due to extraction operations. Governments tout mining as an economic boon to local communities, but this is seldom the reality. What is left out of this narrative are the severe environmental impacts, dislocations, and the fact that these mainly foreign mining companies generally outsource their labor.

On the western highlands of Guatemala, Huehuetenango has been the site of many intense, long-term battles over mining and hydroelectric dam projects. It has been reported that indigenous activists have been killed and community leaders detained for their protests and opposition to the projects. Similarly, in Nicaraguan gold mining areas of Santo Domingo, Limón, and Bonanza, community opposition is met with threats, intimidation, police repression, and criminal charges. By contrast, El Salvador stands out for new legislation to ban the practice of mining for metal, a law that is the first of its kind. Even with this legislation in place, local activists still worry that disputes over mining will arise again in the future.

The Archive’s visitors from Cedros stressed the need for greater oversight of the Peñasquito mining operation given the lack of substantive response to the community’s concerns from federal and state authorities and the potential for open conflict. The National Security Archive will work with the Red Solidaria and Cedros community activists to file Freedom of Information Act requests for information that can advance public understanding of this environmental disaster and the hardships suffered by affected communities.

Glomar Denial Shot Down in the Courts Again, AG Barr Slams FOIA “Regime” at Federalist Society Event, and More: FRINFORMSUM 11/21/2019

November 21, 2019

Glomar Denial Handed Second Loss in the Courts this Month

The District Court for the Northern District of California ruled that the FBI can’t issue a Glomar response to an ACLU FOIA request concerning the bureau’s social media monitoring program. (A “Glomar” response is when an agency refuses to confirm or deny the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.” The tactic has been adopted by several federal agencies and some state and local entities, including the New York Police Department.)

Bloomberg’s Bernie Pazanowski reports that the FBI denied the ACLU’s request for information “about the FBI’s social media related policies and guidance, records concerning the purchase and acquisition of social media surveillance technologies, and records concerning the algorithms and analytics used to operate the program” by citing FOIA exemption 7(E) – which applies to law enforcement techniques and procedures that are “not generally known to the public”, and issued a Glomar response. The FBI argued that confirming or denying such technologies could disclose the bureau’s lack of capability.

Judge Edward Chen ruled, however, that exemption 7(E) “refers only to disclosure of techniques and procedures, and not to the lack of any such technique or procedure.” Judge Chen went on to say “it is well known that many related agencies do engage in social media surveillance in the immigration centers and share that information. This lessens the risk that people will be emboldened by the FBI’s disclosure to spread criminal or terrorist messages through social media. Second, even if the FBI were to disclose it has no records of purchasing or acquiring products or services used to surveil social media, that does not mean that the FBI has no such tools at its disposal, as it could have developed such tools internally.”

This news comes on the heels of Jason Leopold’s significant FOIA win against the CIA’s expansive use of the Glomar exemption. Earlier this month in Leopold’s FOIA suit, the District Court for the District of Columbia ruled that because President Trump tweeted information regarding a defunct covert CIA program to pay and arm Syrian rebels, the CIA could not issue a Glomar in response to Leopold’s FOIA request for information on the terminated program.

AG Barr Slams FOIA “Regime” at Federalist Society Event

Last Friday Attorney General William Barr delivered remarks at the Federalist Society’s 2019 National Lawyers Convention that included some choice comments about FOIA. Barr’s speech focused primarily on the “steady encroachment on Presidential authority by the other branches of government,” although his speech did not mention that the White House is also exempt from FOIA. Barr says:

There is no FOIA for Congress or the Courts.  Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.  That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.”

Attorney Mark Zaid (currently part of the legal team representing the intelligence community whistleblower at the heart of the current impeachment investigation) notes, “Not even John Ashcroft, when he was President Bush’s Attorney General, spoke negatively about #FOIA in this manner. Most past AGs have actually favorably embraced statute as positive example of how our country leads world in transparency & democracy.”

Secret US Intelligence Files Provide History’s Verdict on Argentina’s Dirty War

Archivist Peter Kornbluh’s most recent article for The Nation discusses the ways the Argentina Declassification Project is already helping human rights efforts in that country, noting that Argentine officials are currently assessing the 47,000 pages of declassified documents for their “evidentiary value in human rights prosecutions.”

The unique value of these documents comes from the “meticulous quality control” of the project’s declassification process. As Kornbluh notes, “When intelligence documents are declassified, they’re usually replete with heavy redactions—swaths of information blacked out in the name of national security or to protect covert ‘sources and methods.’ But because of the meticulous quality control exercised by an unheralded NSC records manager named John Powers, the released CIA, FBI, and Defense Intelligence Agency records on Argentina are far less censored than previous special declassifications. This unique transparency has rendered them far more valuable to historians, as well as to the legal investigators who continue to prosecute these crimes against humanity.”

Archive FOIA Cable Shows Guantanamo Prosecutors Misleading Defense

A military judge presiding over the Guantanamo trial of alleged USS Cole bomber Abd al Rahim al-Nashiri recently cited a cable released to the National Security Archive as evidence that the system for handling classified CIA evidence at the detention camp’s national security trials is “flawed and unfair to the defense.” The current system allows prosecutors, working with members of the intelligence community, to decide what portions of evidence the defense needs for trial. Prosecutors, as Carol Rosenberg reports for the New York Times, “then redact portions of reports from the C.I.A. black sites or write summaries to substitute for the actual evidence.”

To reach his determination, Judge Col. Lanny J. Acosta Jr. compared a December 1, 2002, cable that was released to the Archive last year in response to a FOIA lawsuit to a version of the same cable prosecutors provided al-Nashiri’s defense attorneys. Judge Acosta found “the comparison undermines any contention the redactions are narrowly tailored to a legitimate need to protect national security.”

Read the rest here.

Joint Declaration on the Guatemala Police Archive

The Historical Archive of the National Police of Guatemala (AHPN) faces continuing challenges. Following a downsizing in staff and significant budget cuts, the Archive eliminated its investigations unit which, in the past, reviewed records for information to give to families of the disappeared, human rights investigators, scholars, and prosecutors.

Equally troubling is the Guatemalan government’s decision to smear, isolate, and criminalize two people who were central to the creation of the Historical Archive of the National Police and its flourishing. While these events are less dramatic than an outright closure of the AHPN, the Archive is left to operate in a state of suspended animation—its human rights and justice role eliminated, its former directors under criminal threat.

In response, the International and National Advisory Councils of the AHPN have circulated a declaration of concern about the Police Archive’s current situation and the campaign against Anna Carla Ericastilla and Gustavo Meoño. Find them in English and in Spanish here.

The First Nukes on the Korean Peninsula: New Evidence on the Origins of U.S. Deployments 1958-1991

In the late 1950s, Secretary of State John Foster Dulles worried about the hit to America’s global political standing if the U.S. stationed nuclear weapons, some of which were huge, in South Korea, while senior Defense Department officials pointed to the fiscal  benefits of these deployments, according to declassified records posted by the National Security Archive.  Dulles, who had presided over U.S. nuclear deployments around the world, was cautious, declaring that it would be “disastrous to our position with our Allies and the United Nations” and wondering aloud “why it was essential that we be able to haul these great monsters around,” while DOD and the Budget Bureau insisted there were “substantial economies” to be had.

TBT PickAnatoly Fedorovich Dobrynin (1919-2010)

Today’s #TBT pick commemorates the birth of Anatoly Dobrynin 100 years ago this week. Dobrynin, one of the most effective ambassadors of the 20th century, is being remembered in both his home country and the United States for his abilities, not least in helping to manage the ever-turbulent relationship between the two superpowers for almost a generation during a pivotal period of the Cold War. His role in confidential back-channel communications with senior American officials from Robert F. Kennedy during the Cuban missile crisis to Henry Kissinger in the era of détente helped build a basic level of confidence and trust on both sides that was crucial to resolving or averting numerous actual and potential crises.

This updated posting features a small selection of documents and excerpts from three oral history conferences from the mid-1990s that show Dobrynin “in action” – both as a diplomat and as a historian.

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Archive, CREW, Historians Sue Pompeo and the State Department over Failure to Create Records, and More: FRINFORMSUM 11/8/2019

November 8, 2019

Archive, CREW, Historians Sue Pompeo, State Department for violating FRA

The National Security Archive, together with Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR), recently sued Secretary of State Mike Pompeo and the Department of State for violating the Federal Records Act by failing to create and preserve essential State Department records. The legal team representing the plaintiffs in the case is led by Anne Weismann and Conor Shaw of CREW, and pro bono counsel George Clarke and Mireille Oldak of Baker McKenzie.

Evidence from the House’s impeachment inquiry, including testimony from Ambassador William Taylor, the chargé d’affaires for Ukraine under the Trump administration, speaks to a pattern and practice of bypassing official record-keeping procedures at the State Department. In discussing a June 28 State-organized phone call with Ukrainian President Zelenskyy, Ambassador Taylor testified that, not only did the Ambassador to the European Union Gordon Sondland exclude most of the regular interagency participants from the call, but that “Ambassador Sondland said that he wanted to make sure no one was transcribing or monitoring as they added President Zelenskyy to the call.” This is a direct violation of the State Department’s obligation under the Federal Records Act to document agency policies, decisions, and essential transactions.

The FRA lawsuit comes on the heels of a related Presidential Records Act case that the Archive, CREW, and SHAFR filed in May 2019 to compel the White House to create and preserve records of the President’s meetings with foreign leaders. The PRA suit was filed after news reports indicated that no such records existed for at least five meetings with Russian President Vladimir Putin, one meeting with North Korean leader Kim Jong Un, and a meeting with Saudi Arabian Prince Mohammad Bin Salman.

Leopold Gets Big Glomar Win

Buzzfeed’s Jason Leopold – represented by Jeffrey Lighthas won a significant legal victory against the CIA’s expansive use of the Glomar exemption. (A “Glomar” response is when an agency refuses to confirm or deny the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.” The pernicious tactic has been adopted by other federal agencies and some state and local entities, including the New York Police Department.)

In July 2017 the Washington Post ran a story about the Trump administration’s termination of a covert CIA program to pay and arm Syrian rebels, a week later the President tweeted that “the Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad,” and several weeks later Leopold filed a FOIA request with the Agency concerning the terminated program. The CIA tried to respond with a Glomar, and Leopold sued. The court ruled in Leopold’s favor, finding that “Because the President’s tweet makes it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of documents that Buzzfeed requested, Buzzfeed has managed to overcome the Agency’s Glomar response and the Agency has failed to meet its burden in this case.”

Buzzfeed FOIA Suits Win Release of FBI’s “302” Reports on Russian Investigation  

A Buzzfeed News reporting team – including Jason Leopold, Zoe Tillman, Ellie Hall, Emma Loop, and Anthony Cormier – has published a trove of material won in response to five separate FOIA lawsuits concerning special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. The documents are the FBI’s 302 reports – summaries of interviews – and include a number of revelations about Paul Manafort, Michael Cohen, and Rick Gates. As Buzzfeed notes, “They reveal what key players in the campaign told FBI agents about Russia, Trump, the email hack during the 2016 presidential campaign, and Trump’s associates’ handling of the special counsel’s investigation.”

The documents, which can be read here, are the first in a series of court-ordered releases and future installments “will be released every month for at least the next eight years.”

Facial Recognition Software Subject of Second FOIA Lawsuit in As Many Weeks

The Project on Government Oversight (POGO) is suing Immigration and Customs Enforcement for its failure to turn over documents on its use of Amazon’s facial recognition software, Rekognition. The Washington Post notes that POGO filed eight separate FOIA requests with ICE between 2018 and 2019 for documents on “ICE’s surveillance capabilities, detention methods and possible civil rights violations,” as well as FOIA requests for information on marketing materials related to Amazon’s pitch or any analysis of the software’s effectiveness. In each instance ICE either ignored the request or responded with a paltry number of documents.

Last week the ACLU filed a FOIA suit against the Justice Department, the Drug Enforcement Administration, and the FBI for documents on their use of facial recognition software. Specifically, “ACLU attorneys asked a federal court in Massachusetts to order the agencies to release documents about how the government uses and audits the software, how officials have communicated with companies that provide the software, and what internal guidelines and safeguards regulate its use.”

NOAA Chastised Forecasters for Contradicting Trump’s Inaccurate Hurricane Dorian Tweet, Despite Knowledge Forecasters were Acting in Response to Public Panic

Emails released through FOIA are shedding light on the National Oceanic and Atmospheric Administration’s (NOAA) decision to publicly rebuke its own weather forecasters in Birmingham, Ala. for contradicting President Trump’s repeated and erroneous claims that Alabama was in danger of being hit by Hurricane Dorian this September. The emails show that NOAA, which is part of the Commerce Department, knew as of Sept. 2 that forecasters at the agency’s National Weather Service office in Alabama were responding to frantic calls from citizens – and not an earlier tweet from President Trump – when it tweeted that “Alabama will NOT see any impacts from #Dorian.” Yet, after five days of the President falsely insisting that Alabama was in danger from the hurricane – including parading a forecasting map that had been altered with a Sharpie –  the NOAA issued an unsigned statement that chided the forecasters for speaking “in absolute terms that were inconsistent with probabilities from the best forecast products available at the time.” The backing of the president at the expense of science and public safety infuriated members of the public and weather researchers alike, and the released emails also show NWS officials trying to boost moral within the administration after the NOAA’s public admonishments.

TBT1979 Iran Hostage Crisis Recalled

On November 4, 1979, a group calling itself the Students Following the Line of the Imam stormed the gates of the U.S. Embassy in Tehran, seized control of the compound, and took several dozen American diplomats, Marine guards, and others hostage. Thus began a 444-day ordeal that shocked the world, fundamentally altered the political scene in Iran, and cemented negative perceptions in the West of the country’s Islamic leadership.

Forty years later, the Iran hostage crisis is still critical to understanding the bitter nature of relations between Iran and the United States.  It instantly formed a core part of the American narrative about the Islamic Republic as a regime willing to flout international law and universal moral principles, a view that has colored much of U.S. policymaking ever since.

This week, the National Security Archive posted a small sampling of declassified records that recall that pivotal episode. They include a memo from National Security Advisor Zbigniew Brzezinski to President Carter suggesting several hardline actions including replacing Ayatollah Ruhollah Khomeini as Iran’s leader and even overt intervention (see Document 07).  Carter was not prepared to take up any of these options but they indicate the level of alarm created by events in Tehran.

The documents are part of the soon-to-be-published U.S. Policy toward Iran: From the Revolution to the JCPOA, 1978-2015, a collection of almost 2,000 documents that is the latest in the “Digital National Security Archive” series through the academic publisher ProQuest.

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EPA Tries to Blame Bad FOIA Regs on Advisory Committee Recommendation: FRINFORMSUM 11/1/2019

November 1, 2019

Finding agency FOIA regulations can be a difficult task.

EPA Tries to Blame Bad FOIA Regulations on Advisory Committee

The Environmental Protection Agency is trying to blame a recommendation from the FOIA Federal Advisory Committee for its controversial new FOIA regulations, which centralizes the agency’s FOIA submission process within the EPA’s headquarters’ office in D.C. and away from the agency’s regional offices. The new rule, issued in June, allows the administrator and other officials “to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide ‘whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” It seems likely that the rule will expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allow the agency to functionally ignore any requests sent to regional offices.

In an Oct. 23 response to Rep. Katie Porter’s (D-CA.) July 9 letter, the EPA’s acting associate administrator Joseph Brazauskas says the move was in keeping with recommendations from the FOIA Federal Advisory Committee to centralize FOIA processing where appropriate. Rep. Porter didn’t buy the misreading of the FOIA Advisory Committee’s good recommendation. She noted that the EPA’s FOIA processing remains decentralized, while it’s the FOIA submissions policy that has changed. She says, “Centralized FOIA processing, when done properly, allows for one official to search and review records even when held by various offices, thereby eliminating substantial waiting time and duplication of efforts.” Porter further pointed out that “Centralized submissions with continued decentralized processing instead increases delays as FOIA requests are routed to the appropriate office or branch.”

Rep. Porter also argued that the EPA violated federal procedures (the Administrative Procedures Act) by changing its FOIA policy without offering notice and a public comment option, and requested the EPA provide documentations of its legal justifications for doing so. The Project on Government Oversight’s Sean Moulton has an excellent, in-depth analysis of the EPA’s lack of public comment here.

The EPA faced immediate backlash for the rule when it was published in the Federal Register in June. Long-time FOIA champion Senator Chuck Grassley tweeted, “Americans deserve 2kno what their govt is up to Freedom of Information Act designed to promote transparency when govt lacks openness but recent SCOTUS ruling+EPA &Interior regs undermine FOIA I will write legislation 2fix TRANSPARENCY BRINGS ACCOUNTABILITY.” Senator Patrick Leahy added, “Congress won’t sit idly by while @EPA further guts FOIA w. an offensive rule allowing politicals to reject #FOIA requests w/o explanation. @EPAAWheeler: a friendly reminder that #Appropriations has oversight responsibilities. We’ll be chatting about this.” Sens. Grassley and Leahy, along with Sen. John Cornyn and Sen. Dianne Feinstein, introduced a bill, the Open and Responsive Government Act of 2019,  in direct response to the EPA’s rule that “directly eliminates any agency’s authority to withhold any public documents under a basis of non-responsiveness.”

NARA Investigates Wilbur Ross’ Use of Private Email

Politico’s Josh Gerstein reports that the National Archives and Records Administration is investigating Commerce Secretary Wilbur Ross’ use of private email for government business. Ross’ use of private email was revealed in a FOIA lawsuit filed by Democracy Forward, and the FOIA-released documents show that, “From a nongovernment account, Ross has sent or received official correspondence about discussions with the European Commission for Trade, a U.S. ambassador’s meeting with German car manufacturers, a dinner featuring the ambassador of Japan, what appears to be an event related to billionaire businessman Bill Koch, and meeting requests from the far-right Internet troll Charles Johnson.”

NARA’s Laurence Brewer wrote in an October 9 letter to the Commerce Department’s chief information officer that, “The National Archives and Records Administration (NARA) has become aware of a potential unauthorized disposition of U.S. Department of Commerce records… In accordance with 36 CFR 1230.16(b), NARA requests that the Department respond within 30 calendar days to the allegation.”

Ross joins at least eight other current and former Trump administration officials who have been reported to use their personal emails for official business, including Ivanka Trump and Jared Kushner, adviser Steven Miller, former adviser Steve Bannon, former deputy national security adviser K.T. McFarland, as well as former chief of staff Reince Priebus and former National Economic Council director Gary Cohn.

ACLU Files FOIA Suit over Facial Recognition Info

The ACLU recently filed a FOIA suit against the Justice Department, the Drug Enforcement Administration, and the FBI for documents on their use of facial recognition software. Specifically, “ACLU attorneys asked a federal court in Massachusetts to order the agencies to release documents about how the government uses and audits the software, how officials have communicated with companies that provide the software, and what internal guidelines and safeguards regulate its use.” The ACLU filed its FOIA requests with the defendants in January, but received no response.  In its press release regarding the suit, the ACLU’s Kade Crockford cites the FBI’s Facial Analysis, Comparison, and Evaluation (FACE) unit, which searches 641 million facial photos, including those from driver’s license databases.

Nuclear Weapons and Turkey Since 1959

The current crisis with Turkey over Syria has raised questions, yet to be resolved, about the security of 50 U.S. nuclear weapons stored at Incirlik Air Base. These questions have been posed before, going back almost to the start of nuclear deployments in Turkey in 1959. How the United States responds carries implications for the region, for U.S.-Turkey relations, and for NATO. The National Security Archive recently posted a selection of declassified documents from various sources, including the Digital National Security Archive, in order to provide historical context to the situation.

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