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FOIA Request Helps Show What Steps NGA Taking to Reduce Overclassification: FRINFORMSUM 9/14/2017

September 14, 2017

National Geospatial-Intelligence Agency Fundamental Classification Guidance Review – Final Progress Report

FOIA Request Helps Show What Steps NGA Taking to Reduce Overclassification

The National Geospatial-Intelligence Agency (NGA) is going beyond the Executive Order on classification to improve the quality of its classification decisions and reduce overclassification. The Federation of American Scientists’ Steve Aftergood analyzes the changes in the agency’s new classification guide, including three types of “enhancement statements” that are likely “to promote a more thoughtful and limited approach to classifying national security information,” which were described in an agency report to the Information Security Oversight Office and obtained via FOIA. “NGA said that its use of enhancement statements to improve classification guides will soon be adopted throughout the Department of Defense, including all DoD intelligence agencies and military services, in a forthcoming revision of DoD manual 5200.45 on classification guidance.”

NSA Sets Up Surveillance Shop in Ethiopia, The Intercept Releases Trove of SIDtoday Articles  

The Intercept recently published a pair of interesting articles drawing on information from National Security Agency internal documents – nearly 300 SIDtoday articles – leaked by Edward Snowden.

The first draws on the leaked documents – as well as a document the National Security Archive obtained through the FOIA and published in 2009 – to chart how the agency built a surveillance network for Ethiopia, a key counterterrorism partner in East Africa that has been criticized for egregious human rights abuses and political violence. The NSA established its Deployed Signals Intelligence Operations Center, known as Lion’s Pride, in 2002 – but the roots go back to 1953, when the US “signed a 25-year agreement for a base at Kagnew Station in Asmara, Ethiopia, according to a declassified NSA report obtained by the nonprofit National Security Archive. Navy and Army communications facilities based there were joined by an NSA outpost just over a decade later.”

The second highlights stories from the 294 SIDtoday articles that are both substantive and strange, ranging from spies circumventing an attempt to mask their identities online by logging into their social media or doing a little online shopping, to efforts to spy on a liberated Iraq.

Mar-a-Lago guest Richard DeAgazio’s Facebook page featured a number of pictures of President Trump’s meeting with Japanese Prime Minister Shinzo Abe as news broke North Korea had fired a missile in the direction of Japan.

Mar-a-Lago Release Expected Tomorrow

The widely anticipated release of Mar-a-Lago visitor records for President Trump’s first six weeks in office has been delayed until noon tomorrow, Friday, September 15, at the request of the government.

Previously, federal district judge Katherine Polk Failla had ordered release of this first tranche of visitor logs for today, in response to the Freedom of Information Act lawsuit brought by the National Security Archive, the Knight First Amendment Institute at Columbia University, and Citizens for Responsibility and Ethics in Washington (Doyle et. al. v. DHS). But government lawyers told the plaintiffs last Friday that another week was needed for final review of the records.

Apparently, the Mar-a-Lago records do not include the level of detail that was routinely released by the Obama White House for over seven years on visitors, such as the staff person who authorized the visit, and location visited. Instead, the Mar-a-Lago records seem to consist of a series of e-mails between Secret Service components, sending names and identity information to be vetted. The release next Friday, September 15, will likely consist of a PDF containing these e-mails.

DC Glomars FOIA Request on Officer Seen Wearing Offensive Shirt

The District of Columbia is Glomaring a FOIA request for information on past complaints made against Officer Vincent Altiere, who was documented wearing a shirt bearing symbols “associated with the Ku Klux Klan and other racist groups,” saying any information – which they will not acknowledge the existence of – would be “a clearly unwanted invasion of personal privacy.” FOX 5 filed the FOIA request with the Metropolitan Police Department, and later appealed up to the mayor’s office; both entities denied the appeal.

Alleged Sessions Resignation Letter Won’t be Released

The Justice Department is Glomaring a FOIA request from the Huffington Post for a copy of Attorney General Jeff Sessions’ draft resignation letter allegedly written on May 5. Politico reported the resignation was penned after Trump repeatedly expressed frustration with Sessions’ recusal from the Russia investigation. The DOJ argued that “Even to acknowledge the existence of an alleged letter of resignation could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The DOJ also  refused to release the resignation letters of the U.S. attorneys who “left their posts at the request of the Trump administration” in March to the Burlington Free Press in response to a FOIA, saying they were “inherently personal.” Two former U.S. Attorneys – Tom Delahanty of Maine and Mike Cotter of Montana – later shared their resignation letters with the Burlington Free Press, saying there was nothing in the letters that should prevent their public release. Cotter’s March 10, 2017, letter stated: “Today at 12:45 p.m. MST I was informed that you Mr. President, ordered that I resign my position as United States Attorney for the District of Montana effective 5 p.m. MST today. Accordingly, I hereby submit my resignation.”

Kornbluh at the Secrets of State exhibit in Santiago.

Chile: Secrets of State

Forty-four years after the U.S. supported military coup, the Santiago Museum of Memory and Human Rights has inaugurated a special exhibit of declassified CIA, FBI, Defense Department and White House records on the U.S. role in Chile and the Pinochet dictatorship. The unusual exhibit, which officially opened to the public on September 5, is titled Secretos de Estado: La Historia Desclasificada de la Dictadura Chilena—Secrets of State: the Declassified History of the Chilean Dictatorship.

Curated by National Security Archive senior analyst Peter Kornbluh, the exhibit consists of 45 formerly classified documents dated between 1970 when Richard Nixon ordered to the CIA to instigate a coup in Chile, and October 1988 when General Augusto Pinochet sought to orchestrate a second coup after losing a plebiscite to stay in power.

The exhibit, mounted in the museum’s “Galeria de la Memoria,” will run until March, 2018.

Cyber Vault: First Responders Targeted

Cyber criminals, including those supporting violent extremists, appear engaged in an ongoing effort to single out first responders, hoping to impede their ability to react to disasters. Cyber Threats to First Responders are a Persistent Concern, compiled by the New York State Professional Fire Fighters Association in conjunction with the National Counterterrorism Center, DHS, and the FBI, cites recent incidents in DC and 12 states, and provides a list of possible countermeasures.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 13.

TBT Pick: “Godfather” of Colombian Army Intelligence Acquitted in Palace of Justice Case

This week’s #TBT pick is a 2011 posting on the Palace of Justice trial of Colombian army general Iván Ramírez Quintero, who “actively” collaborated with paramilitary death squads responsible for dozens of massacres, according to FOIA-released records published by the Archive. Ramírez, however, was exonerated for his role in the torture and disappearance of Irma Franco, one of several people detained by the army during the November 1985 Palace of Justice disaster. Archivist Michael Evans has the whole story and declassified documents here.

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Deadline Looms for Govt to Release Mar-a-Lago Presidential Visitor Records in Response to FOIA Suit: FRINFORMSUM 9/7/2017

September 7, 2017

Mar-a-Lago Diplomacy

Tomorrow Deadline for Mar-a-Lago Records Release

Tomorrow is the deadline for the Department of Homeland Security to release all responsive, non-exempt records of presidential visits to Mar-a-Lago in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).

It remains unclear how robust the visitor records the National Security Archive receives will be, but what is evident is that the FOIA lawsuit is forcing a greater degree of transparency than would have been possible without litigation.

The government has until the end of September to file declarations concerning the White House visitor logs. For comprehensive coverage of our suit, Doyle v. DHS, and the history behind the request, read:

Golf Handicap Records Help Track Lobbyists, Contractors Playing at Trump Golf Courses

A USA Today investigative team combed through social media posts, news stories, and a public website popular with golfers to track their handicaps and check other players’ scores, and found “Dozens of lobbyists, contractors and others who make their living influencing the government pay President Trump’s companies for membership in his private golf clubs, a status that can put them in close contact with the president.” Among them are “top executives of defense contractors, a lobbyist for the South Korean government, a lawyer helping Saudi Arabia fight claims over the Sept. 11 terrorist attacks and the leader of a pesticide trade group that sought successfully to persuade the Trump administration not to ban an insecticide government scientists linked to health risks.” The potential access for the super wealthy (a membership is roughly $100,000 a year) raises a host of ethical questions about whether it is appropriate for the president to be personally enriched by those trying to shape federal policy.

FOIA Sheds Light on LGBT Data Tussle

During the Obama administration the Justice Department, Department of Housing and Urban Development, Environmental Protection Agency, and Centers for Medicare and Medicaid Services all requested that the Census Bureau include questions about sexual orientation and gender identity in the next American Community Survey. As NPR reports, “Many LGBT rights groups say accurate national data about lesbian, gay, bisexual and transgender people are critical in making sure their needs are met.”

The Justice Department, however, rescinded its request under the Trump administration “because such a request requires thorough analysis and careful consideration,” and in March the bureau concluded there was “no federal data need” to collect the information. Former Census Bureau director John Thompson told NPR that had that not happened, the bureau might have started asking sexual orientation and gender identity questions.

NPR received a number of documents on the fight over LGBT questions through the FOIA, including a November 4, 2016, Justice Department letter citing the “legal authority supporting the necessity” for collecting the data, and a June 30, 2016, letter from HUD arguing that “Valid, reliable, and nationally representative data on sexual orientation and gender identity are essential to HUD fulfilling its mission” – particularly enforcement of the Equal Access to Housing rule and the Fair Housing Act.

18F Publishes Recommendations for National FOIA Portal

18F, the General Services Administration’s digital wizards, recently published their recommendations on the government-wide FOIA online request portal mandated by the FOIA Improvement Act of 2016. Compiled after extensive research and dozens of interviews (full disclosure: I was interviewed by 18F during this process), the tech team – solicited by the Justice Department, which received $1.3 million to build the website – found “that while a request platform alone cannot address the most significant challenges with FOIA, a single collection point for requests represents a unique opportunity to make significant improvements to the FOIA requesting system overall.”

The Sunlight Foundation’s Alex Howard summarizes 18F’s work-to-date and potential as follows:

Many of the problems with FOIA cannot be solved with better software. The public still waiting to hear anything from the Department of Justice regarding the “release-to-one, release-to-all policy” that it took public comment on last year, and the antagonism towards transparency by the Trump administration has been well documented.

That said, this is still good news in a historic moment in DC when open government is under threat. We applaud the General Services Administration for their work to date and look forward to seeing the beta go live, but this project is far from over. What happens next will depend in part on funding and political will.

The National Security Archive echoes these sentiments.

Soviet Navy Declassified

The CIA has declassified and published some 82 documents, totaling 2,000 pages, on the Soviet Navy during the Cold War. The release coincides with a joint event hosted with the National Museum of the U.S. Navy and the Naval Historical Foundation. The CIA press release notes, “The documents range from translations of clandestinely-obtained articles from the Soviet military journal, Military Thought, to high-level National Intelligence Estimates.”

The collection is a third in a series of CIA releases on Warsaw Pact forces. The earlier releases are:

How to Counter Botnets?

An unclassified Defense Advanced Research Projects Agency (DARPA) presentation dated July 31, 2017, indicates that DARPA is pursuing methods for countering botnets-based operations. Specifics from the presentation, Harnessing Autonomy for Countering Cyberadversary Systems (HACCS), include the program’s structure and schedule, classification and clearance requirements, and meeting and reporting requirements.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 6.

TBT Pick – Stopping Korea from Going Nuclear, Parts 1 and 2

This week’s #TBT pick is a pair of postings on South Korea’s nuclear ambitions. The first posting documents how the Ford administration accumulated evidence – including a secret report to Secretary of State Henry Kissinger relaying that President Park Chung-hee reportedly instructed South Korean scientists to build nuclear bombs by 1977 – that raised worries about proliferation and regional instability. The second charts how the Ford administration had to use a combination of approaches to keep South Korea’s Park dictatorship from going forward with a suspected nuclear weapons program in the mid-1970s.

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Will ‘Still Interested’ Letters Surge as End of FY 2017 Approaches? FRINFORMSUM 8/31/2017

August 31, 2017

Will ‘Still Interested’ Letters Surge as End of FY 2017 Approaches?

The Office of Government Information Services has a timely blog on the use of “still interested” letters, reminding agencies of the most recent Department of Justice Office of Information Policy guidance on the use of these letters as the end of Fiscal Year 2017 approaches and agencies may be eager to close old FOIA requests. (“Still interested” letters are letters that agencies send FOIA requesters – often years after the request was made – to determine if the requester is still interested in the request being processed.) The blog emphasizes that the latest guidance requires agencies limit the instances in which they send such letters to when the agency “has a reasonable basis to believe that the requester’s interest in the records may have changed” and instructs agencies to provide requesters a reasonable amount of time to respond to the query (30 days at a minimum).

It remains worth noting that the overall premise behind these letters is fundamentally flawed. Nothing in the FOIA itself allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted.

Trump’s Election Integrity Commission Runs Afoul of Judge for Failing to Disclose Public Info

U.S. District Judge Colleen ­Kollar-Kotelly recently admonished President Trump’s Election Integrity Commission during a federal court hearing concerning the commission’s compliance with open government laws for not releasing all public documents before its mid-July meeting. The commission released only an agenda and proposed bylaws before last month’s meeting, but provided commissioners with a 381-page “database” allegedly detailing 1,100 cases of voter fraud, as well as a list of possible discussion topics that should also have been published.

The DOJ Civil Division’s Elizabeth Shapiro explained the error by saying it was based on guidance from the Office of Legal Counsel and was an honest misunderstanding.

Judge ­Kollar-Kotelly said it was “incredible” that the DOJ didn’t believe it had to post “documents prepared by individual commissioners” for the meeting in advance, and ordered “the government to meet new transparency requirements” for its next meeting on September 12.

Recently-pardoned Maricopa County Sheriff, Joe Arpaio.

Arpaio’s Cold Case Posse

MuckRock recently published a collection of FOIA-released records from the Maricopa County Sherriff Office on former sheriff Joe Arpaio’s “cold case posse” – Arpaio’s “controversial non-profit whose chief claim to fame was investigating outgoing President Barack Obama’s birth certificate” and was disbanded by current sheriff Paul Penzone earlier this year.“Highlights” from the documents include: emails alleging that Mexican cartels were colluding with the US government to interfere with the posse’s investigation; setting up a 2013 meeting with Congresswoman Michelle Bachmann (R-Minn.) two years after Bachmann said the “birther” issue was settled; and Arpaio reassuring a fan in December 2016 that the investigation into Obama’s birth certificate was ongoing.

Remembering the Buenos Aires Herald

The Buenos Aires Herald, the storied English-language Argentinian newspaper, folded last month. The news hit many hard – in no small part because of the Herald’s role reporting on Argentina’s Dirty War. The paper distinguished itself early on in the decade of state-sponsored terrorism, by reporting on what others wouldn’t – like the assassination of two seminarians in a church “by raising doubts about the official account, which held that they had been murdered by an armed leftist group.” When news of the papers closing spread, the human rights group, the Mothers of Plaza de Mayo, thanked the editor for “making us feel less alone.”

The National Security Archive’s Southern Cone project has a number of postings on the Dirty War, a selection of which can be found below:

Mark Zuckerberg’s Ill-Fated Meeting with Government Climate Scientist

FOIA requests to the Department of Interior and the National Park Service won the release of documents that shed light on why Facebook CEO Mark Zuckerberg’s meeting with DOI climate scientist Dan Fagre to discuss global warming was abruptly cancelled. Motherboard reports “that Trump administration appointees took issue with Fagre’s involvement in the event. The emails also show that NPS staff were left scrambling to explain Fagre’s exclusion to Facebook, which repeatedly requested a government scientist capable of speaking about the effects of climate change on melting glaciers at the park. The emails also show that, prior to Fagre’s exclusion, NPS Acting Director Michael Reynolds suggested that the administration could try to ‘manage the talking point’ of government scientists during the meeting.”

For Document Hounds: NSA History Collection Finding Aid

Steve Aftergood has published a declassified National Security Agency finding aid “for a collection of thousands of historically valuable NSA scientific and technical records” recently transferred to NARA. NARA’s David Langbart says that the records described “mostly consist of technical, analytical, historical, operational, and translation reports and related materials. Most of the records date from the period from the 1940s to the 1960s, but there are also documents from the 1920s and 1930s and even earlier.” Aftergood notes that more titles “deal with narrow, highly specialized aspects of cryptologic history prior to 1965. A few examples picked at random: German Signals Intelligence in World War II; A Compilation of Soviet VHF, UHF and SHG Activity by Area, Source and Service; Hungarian Army Communications; Description of Chinese Communist Communications Network; and so on.”

JFK and AEC Chairman Glenn Seaborg speaking with Edwin McMillan, director of Berkeley Radiation Laboratory (wearing badge), on 23 March 1962.

“Clean” Nukes and the Ecology of Nuclear War

The Atomic Energy Commission initiated studies to consider the ecological impact of nuclear war in the early 1960s, a time when the writings of natural scientist Rachel Carson were starting to inspire the modern environmental movement. The studies grew out of a belief that U.S. national security required a better understanding of the biological and environmental impacts of a nuclear conflict. Documents published this week for the first time by the National Security Archive detail the creation of the AEC’s Technical Analysis Branch (TAB), which conducted the studies, and its early efforts at exploring the long-term consequences of nuclear war.

Get the whole story, and read the documents, here.

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FOIA Helps Show How Conservative TV Giant Could Find its Way Into 7 out of 10 Homes: FRINFORMSUM 8/17/2016

August 17, 2017

The FCC’s Ajit Pai’s calendar notes a meeting with Sinclair executives and business partner.

FOIA Helps Show How Conservative TV Giant Could Find its Way Into 7 out of 10 Homes

FOIA requests to the Federal Communications Commission won the release of hundreds of pages of documents showing how the TV giant Sinclair Broadcast Group stands to benefit from the agency’s “deregulatory blitz.” Most important is a deregulation that effectively removes a cap on how many stations a single broadcaster can own and that could put Sinclair in the vast majority of American’s homes.

Sinclair, already “the nation’s largest television station operator by coverage,” is trying to merge with another TV giant – Tribune Media. Current rules, however, mandate that no one company can own TV stations that reach more than 39 percent of the nation. But FCC chair Ajit Pai approved a measure in April – that reinstates “an obsolete loophole called the ‘UHF discount,’ which allows broadcasters to discount by 50 percent the reach of local stations that use ultra-high-frequency (UHF) TV signals” – that will all but ensure the media giant can work around this constraint.

If approved, the merger would “transform Sinclair into a media juggernaut, with reach into seven out of 10 homes through more than 200 stations in cities as diverse as Eureka, Calif., and Huntsville, Ala. The company would have a significant presence in important markets in several electoral swing states, including Pennsylvania, Ohio and North Carolina, and would gain entry into the biggest urban markets: New York, Los Angeles and Chicago.”

The move alarms critics. Former FCC Commissioner Michael Copps says, “No one company should have such power over the news and information that citizens must have to successfully practice the art of self-government. And that doesn’t even get into the vices of this particular company.” The Washington Post reported in December 2016 that, “A review of Sinclair’s reporting and internal documents shows a strong tilt toward Trump” and that local affiliates were forced to air “must-run” pro-Trump specials.

FCC chair Ajit Pai has also come under fire in recent months for his proposed net neutrality rollbacks. More on those stories here and here.

FOIA Sheds Light on Harassment of Trump Org Whistleblowers by Trump Security Again

A family’s harassment at the hands of the Trump Organization’s security team is the subject of a recent Buzzfeed article. The story – bolstered by FOIA responses from the FBI – details how Trump security guards terrorized the wife and 12-year-old son of a Trump Organization employee who threatened to reveal financial malfeasance at the company. The employee, Daut Bajrushi, “believed he had evidence the Trump company had ripped off homeowners of about $300,000.” When his wife and son went to his office to retrieve paperwork, guards allegedly intimidated them and threatened to hurt the family if they went public.

This is not the first accusation of Trump security intimidating would-be whistleblowers. FBI FOIA responses to Buzzfeed’s Jason Leopold and MIT’s Ryan Shapiro and published in May of this year detailed previously unreported threatening phone calls – one the FBI characterized as “overt extortion” – related to Trump’s business dealings that were investigated by the bureau. The more recent was a 2009 call that was received by a high-profile bankruptcy lawyer representing clients who “stood to lose more than a billion dollars” over Trump’s failed casino venture, Trump Entertainment Resorts. The caller told the lawyer, Kristopher Hansen, that “My name is Carmine. I don’t know why you’re fucking with Mr. Trump but if you keep fucking with Mr. Trump, we know where you live and we’re going to your house for your wife and kids.” More on this story here.

FBI Sued for Records on Roger Ailes for Second Time this Month

 Ryan Shapiro and Property of the People’s Operation 45 are suing the FBI under the FOIA for records on ousted Fox News head, Roger Ailes, as well as documents concerning Fox News Channel, Fox Television Stations, and 21st Century Fox. The complaint was filed in the US District Court for the District of Columbia.

This is the second FOIA suit filed this month for the FBI’s records on Ailes. Gizmodo sued the FBI after the bureau didn’t respond in that statutory 20-day time period. The complaint was filed in the US District Court for the Southern District of New York.

We Need to Have Our History

Information Security Oversight Office (ISOO) director Mark Bradley recently gave an enlightening interview to Federal News Radio’s Meredith Somers that should be a must-read for classification authorities and records management officials alike. Of the approaching tsunami of email and electronic records Bradley says, “I worry about what historians will face 50 years from now when they write the history of what’s going on now, what kind of records they’re going to have, whether they’re going to have access to them at all.” Bradley also says agencies need to stop approaching classification and declassification efforts as a zero-sum game; “If you ask an agency like the Central Intelligence Agency [CIA] to focus more on classification, they’ll ask whether you’d rather the agency combat terrorism or spend money on looking at what happened during the Bay of Pigs. The answer obviously is we all want to be protected, but we also need to have our history.”

The 50-Year Rule Not Working

Our “FOIA Yoda” and Nuclear Vault director, Dr. William Burr, takes a look at some more dubious secrets in “The Fifty-Year Rule: Its Use and Misuse.” A key question? How can DOD reviewers seriously believe that these 50-year old documents remain so sensitive that disclosing them would cause serious harm to U.S. foreign relations?

TBT Pick – JFK and Top Aides Considered Preventative Military Action Against Chinese Nuclear Facilities

Today’s #tbt pick is a 2001 posting detailing how President John F. Kennedy and top advisers considered bombing strikes and covert paramilitary operations to destroy China’s nascent nuclear weapons program in the early 1960s. Some of the highlights from the declassified documents behind the posting are:

  • JFK saw the prospect of a nuclear-armed China as a dangerous threat and the Pentagon and the CIA looked closely at the possibility of covert para-military operations to destroy China’s nuclear weapons installations.
  • National security adviser McGeorge Bundy played a key role in encouraging covert planning against China’s nuclear program, which included discussions of paramilitary operations such as raids by Taiwanese commandos as well as the prospect of joint action with the Soviet Union.
  • Other officials, including State Department analysts, were not persuaded by worst-case analyses of a nuclear China and argued that Beijing would be more cautious, not more aggressive.

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The Fifty-Year Rule: Its Use and Misuse

August 15, 2017

The Department of Defense and military agencies use the foreign policy exemption in Executive Order 13526 to deny or heavily excise documents that are well over 50 years old.  According to Pentagon claims, declassifying information from that far back could cause significant harm to U.S. diplomacy. That many of the same documents have been declassified since the 1990s raises questions about the discernment of those agencies and whether they should be in a position to unilaterally substitute their judgment on U.S. diplomatic necessities for the State Department’s.

Under Executive Order 13526 signed by President Barack Obama in December 2009, and still in effect, classified documents 50 years or older, must be declassified unless they include the names of confidential intelligence sources or information on weapons of mass destruction technology.  The executive order includes an escape clause for the 50-year rule; under section 3.3 (h) (2), “in extraordinary cases” agencies can request permission to exempt “additional specific information.”  In practice, this means, for example, that agencies can use the standard Executive Order exemptions deny information.  For example, Defense can apply Section 3.3 (b) (6) of the executive order to restrict old documents whose content would supposedly “reveal information, including foreign government information, that would cause serious harm to relations between the United States and a foreign government, or to ongoing diplomatic activities of the United States.”  As it turns out, this gives the Pentagon authority that it has misused.

In recent decisions on mandatory review cases, Defense Department reviewers used the E.O. foreign policy exemption to deny or heavily excise documents that have been in the declassified public record for a number of years.  Examples are discussed below.  The purpose of the discussion is not to rebuke Pentagon declassification reviewers for being unaware that documents have been declassified. There are many declassified documents at U.S. government archives and presidential libraries.  The point is to raise questions about the judgement of the reviewers.  How can they seriously believe that these 50-year old documents remain so sensitive that disclosing them would cause serious harm to U.S. foreign relations?

Documents on the Cuban Missile Crisis


A recent example of the evident misuse of the foreign policy exemption concerns documents from the Cuban Missile Crisis, October 1962, held among State Department records at the National Archives (College Park).   In response to a mandatory declassification review request by journalist Michael Dobbs, the National Archives organized security review by agencies that were deemed to hold information “equities” in the documents.  In the first response to the request, NARA informed Dobbs that the Department of Defense had withheld in their entirely 18 documents (over 190 pages) from declassification on the basis of E.O. exemption (6) as well as the Atomic Energy Act [6.2 (a)]. It is not clear whether the Defense Department had exempted all, or just some, of the 18 documents on the basis of both two exemptions.  As indicated below, some of them have nothing to do with nuclear weapons.  Even though the collection is in State Department records, that agency withheld no information from Dobbs’ request.

Notwithstanding the fact that these documents were produced nearly 55 years ago during a crisis whose basic contours and substance have been declassified for years, everything from invasion plans and intelligence collection to secret negotiations and alliance diplomacy, it is perplexing that the Pentagon finds it necessary to use E.O. exemption (6) to withhold information on those events.  Apparently, declassifying information about the crisis could damage U.S. foreign relations!  Yet, as it turns out, more than a few of the exempted documents have been declassified in their entirety since the 1990s, when the State Department was declassifying documents in response to requests from the National Security Archive and when, in 1998, the State Department published documents on the crisis in its historical series, Foreign Relations of the United States.  Specific identification is possible because the withdrawal sheets in the collection provide dates and titles of the documents that remain in the vault at NARA.

As for the Atomic Energy Act claims mentioned above, a few of the documents exempted in this case, but previously published by the State Department, might be said to include information characterized as “formerly restricted data.”  As they have been in the State Department’s open record for nearly 20 years, however, their special status weakens any claims about FRD.

One of the documents exempted by the Defense Department is an intelligence community product, published on 19 October 1962, “Joint Evaluation of Soviet Missile Threat in Cuba.”  This document was published in 1998, in the FRUS microfiche supplement.  In 1992 the CIA published the same information in its collection, CIA Documents on the Cuban Missile Crisis, edited by Mary S. McAuliffe. Whether the Defense Department believes that this item is classified atomic energy information or harmful to U.S. foreign relations is unclear.

Another document withheld by Defense, “Air Strike Scenario,” is also published in the 1998 FRUS microfiche supplement. This document reviews the political and diplomatic approach that would be taken if the United States attempted to destroy the Soviet missile deployments with a surprise attack. What may have contributed to Defense Department hackles is a sentence on page 3 referring to nuclear weapons in Italy and Turkey. As sensitive as this information was at the time, U.S. nuclear deployments in Italy and Turkey have become one of those open secrets that the classification system cannot conceal.

Also exempted by the Pentagon was a State Department memorandum from about 20 October, 1962, “Quarantine” a timetable for military and diplomatic action that would be taken up to the moment when the United States imposed a blockade of Cuba.  The State Department declassified this document in response to a request from the National Security Archive during the late 1980s.

Also exempted by the Pentagon are the Joint Chiefs of Staff’s instructions, sent 22 October 1962, to the Commander in Chief Atlantic Command (CINCLANT) Admiral Robert Dennison ordering him to make preparations for the blockade. This document is available in the FRUS microfiche supplement. The Pentagon’s reasons for classifying this telegram are inscrutable.

A State Department document titled “Cuba,” dated 23 October 1962, and released in its entirety by the Department to the National Security Archive during the 1990s, was also exempted.  The Pentagon may regard it as sensitive because of the discussion of withdrawing Jupiter ballistic missiles from Turkey as part of a diplomatic settlement.  Even though the Defense Department’s official history of Robert McNamara as Secretary of Defense includes detailed discussion of the role of Jupiter deployments in both Turkey and Italy during the crisis, the Department’s reviewers go to absurd lengths to avoid declassifying information about the Jupiters. A sentence concerning U.S. nuclear weapons in West Germany is another non-secret because the fact of the deployments was declassified during the 1990s.

A White House Meeting in September 1959

The Department of the Navy and the Defense Department jointly provide another recent example of silly foreign policy secrecy.  In response to a request made in 2011, the Navy recently released a heavily excised version of a memorandum signed by Chief of Naval Operations Arleigh Burke concerning a White House meeting on nuclear policy issues, held on 22 September 1959.  President Dwight E. Eisenhower attended the meeting, as did Atomic Energy Commission chairman John McCone and Under Secretary of State C. Douglas Dillon.  According to the Navy’s letter, the Navy Department and the Defense Department withheld large chunks of the document by citing the 3.3 (b) (6) foreign relations exemption. In addition, one piece of information in the memorandum on page 3 was excised under exemption 3.3. (b) (2), designed to protect “information that would assist in the development, production, or use of weapons of mass destruction.” Tellingly, the Department of Energy (the successor to the AEC) had no objection to declassifying this document in its entirety.

White House staff secretary Andrew J. Goodpaster attended the meeting and prepared a detailed account of it, which has been declassified in its entirety in a FRUS microfiche supplement published in 1998, although not on-line.  The Goodpaster version shows that the withheld portions on pages 1 through 3 concern the staging of special experiments (generally known as “hydronuclear tests) to check the safety of the fission primaries incorporated in thermonuclear weapons.  “CREEP testing” referred to the use of high explosives and increasingly larger, but minute, quantities of plutonium (they would creep up in size) tested in a weapons configuration to determine the safety of a particular device.  Such tests have been called “zero nuclear yield”, but the actual yield exceeded zero, although only fractions of a pound. (See Eric Schlosser, Command and Control: Nuclear Weapons, The Damascus Accident, and the Illusion of Safety, at 197-199) These safety tests were a subject of continuing discussion in the Eisenhower and Kennedy administrations and more information on them has been declassified in the FRUS. As sensitive as this topic may have been in 1959, policy discussion on hydronuclear experiments has been declassified for years.

The Defense and Navy Department’s belief that declassifying much of the discussion of the safety experiments could harm U.S. foreign relations suggests that they were grasping for a reason to restrict the information.  That the Energy Department had no objection to release indicates that the Navy-Defense decision that declassification of a passage on page 3 would disclose information about weapons of mass destruction is highly suspect.

The declassified Goodpaster version indicates that the information excised on pages 4 through 6 of the Arleigh Burke version concerned the Netherlands government request for an atomic cooperation agreement concerning access to U.S. nuclear submarine technology. This involved complex alliance issues because other NATO governments, France, Italy, and West Germany, were also interested in developing nuclear-powered submarines.  One concern expressed at the meeting was the security of technical nuclear information; e.g. whether it would be safe in France where, according to Douglas Dillon, the “atomic activity is penetrated by Communists.”  On the Netherlands, Eisenhower argued that “if we have allies we must treat them like allies.” Dutch security was good, according to CIA director Allen Dulles.  McCone, however, wanted the U.S. to build the submarine for the Netherlands, although he acknowledged that they would rather do it themselves to save money. Again, declassifying Arleigh Burke’s version of this discussion could in no way harm U.S. foreign relations more than fifty years after the fact.

The routine misuse of the foreign relations exemption by the military agencies demonstrates the need for tightening up of the 50-year rule in the Executive Order.  An updated Executive Order should include checks on the discretion of the military agencies to use the foreign policy exemption to excise or withhold documents. (That should also be true of FRD under the Atomic Energy Act because it is evident that Defense officials do not know what is already declassified).  As the Defense Department has also applied exemption (6) to more recent information, e.g. from the 1970s, further constraints should be considered.   But with the Pentagon pulling the weight that it does today, and State Department leadership in retreat, it is doubtful that any reasonable reforms will occur in the foreseeable future.

My criticisms notwithstanding, I appreciate the work that the defense agencies put into handling mandatory review requests.  All the same, if they want their declassification processes to have reasonable credibility, they need to develop far better criteria for reviewing historical documents.

Federally-Funded Private Prisons Should be Subject to FOIA: FRINFORMSUM 8/10/2017

August 10, 2017

Federally-Funded Private Prisons Should be Subject to FOIA

The National Security Archive joined a large coalition of open government groups calling for the passage of legislation that would apply FOIA to federally-funded private prisons, closing a routinely abused loophole. The Private Prison Information Act of 2017 (S. 1728) was introduced by Senator Ben Cardin (D-Md.) and “extends the obligation to respond to Freedom of Information (FOIA) requests on the federal contracting agencies using existing FOIA procedures.”

Private prisons that receive government funding provide (ostensibly) the same service as government-run prisons, and 18 percent of federal inmates are housed in such facilities – but the companies claim they are exempt from disclosure laws.

The joint letter spearheaded by OpenTheGovernment and sent to members of Congress notes:

Despite the fact they are holding people in federal custody under federal law, nonfederal entities are not subject to the federal FOIA. Private contractors abuse this loophole by marking field reports for internal use only and shielding from public scrutiny information on security breaches, overcrowding, and unaccountable spending. Moreover, federal agencies that contract out for jail and prison beds often rely on FOIA Exemption 4 – the business trade secrets exemption – to avoid responding in full to FOIA requests pertaining to privately-run facilities. This loophole leads to a lack of information needed to understand the cost of detention in private facilities and allow the public to understand the fiscal and human impact of privatized detention and incarceration.

The proposed legislation comes on the heels of the Trump administration’s decision to reverse the Obama administration’s plan to phase-out federal use of private prisons.

MuckRock’s Private Prison Project is an invaluable resource for people concerned with this critical issue.

Transparency should also extend to the companies that operate interstate prison vans and transportation systems, which have long existed without appropriate oversight. (Visit The Marshall Project’s Prison Transportation project for more.)

Blackwater Founder Wants to Privatize Afghan War

Blackwater founder and Education Secretary Betsy DeVos’s brother, Erik Prince, has been making the rounds in recent weeks to advocate privatizing the war in Afghanistan – an idea reportedly supported by Stephen Bannon and Jared Kushner, if not the DOD. The change could have, among other ramifications, profound implications for transparency. The Atlantic Council’s Sean McFate warns that the world of contracted armies “is more opaque than the CIA or the DOD. … And the trend is invisible to most Americans.”

Blackwater’s record in Iraq does not provide assurances. Documents obtained through a FOIA request in 2012 shed light on how the Department of State rates, grades, and oversees the work assigned to its contractors. One assessment reported that Blackwater’s poor performance in Iraq caused the Department of State “to lose confidence in their credibility and management ability.”

Nisour Square Resentencings

The push for privatization comes at the same time a U.S. Appeals Court threw out one of the four first-degree murder convictions for Blackwater contractors involved in a 2007 shooting in Baghdad’s Nisour Square, which left 14 people dead and 17 wounded. The court ordered resentencings for the other three convictions, finding that the 30-year terms constituted “cruel and unusual punishment.”

In 2015 The New York Times obtained emails showing the FBI agent that led the investigation into four of the seven Blackwater contractors “became convinced that political appointees in the Justice Department were intentionally undermining the case.” The records showed that senior DOJ officials initially balked at bringing two machine-gun charges against the contractors, which are primarily levied against gang members and “carried mandatory 30-year prison sentences”; prosecutors ultimately only brought one machine-gun charge.

Pilot Program at Defense Department for Access to Classified Docs on Secure Tablets

Secure 8-inch screen tablets are being issued to senior officials at the Defense Department for accessing classified documents. The Defense Information Systems Agency initiated the program, which is part of the DOD Mobility Classified Capability – Secret program, this May. Reports indicate that the tablets “include features like the United Video Dissemination System that allows full-motion video from intelligence, surveillance and reconnaissance sources.”

1953 Iran Coup: New US Documents Withheld from FRUS Confirm British Approached US in Late 1952 About Ousting Mosaddeq

State Department memorandum of conversation dated December 3, 1952, describes a meeting between U.S. and British officials on the subject of: “British Proposal to Organize a Coup d’etat in Iran.”

The British Foreign Office approached the Truman administration on more than one occasion in late 1952 to propose a coup to overthrow Iranian Prime Minister Mohammad Mosaddeq, according to freshly declassified State Department documents. Posted by the National Security Archive for the first time, two previously Top-Secret memoranda from senior officials at State refer to a series of communications and meetings beginning in October 1952 in which British officials tried to win US approval of Mosaddeq’s ouster.

The posting consists of the most explicit, officially declassified records on the subject released to date by any government.

The two documents were originally considered for inclusion in the latest official US publication on the coup period. In June 2017, the State Department published a 1,007-page compilation of declassified State, Central Intelligence Agency, and National Security Council documents as part of its Foreign Relations of the United States (FRUS) series. But while both records are mentioned in the volume by title and date, their content was withheld in its entirety.

The Cuban Missile Crisis Revisited

Longtime National Security Archive fellow Michael Dobbs recently penned an opinion piece for the Washington Post on what President Trump – recently threatening Kim Jong Un with “fire and fury” – should know about the Cuban Missile Crisis. In writing his 2008 book One Minute to Midnight, Dobbs concluded “that the real risk of war arose not from the conscious designs of Kennedy, Nikita Khrushchev or even Fidel Castro. It stemmed from the possibility that the opposing sides could trigger a nuclear conflict that nobody wanted through miscommunication and freak accidents, which became increasingly likely at higher levels of military alert.”

Dobbs wrote a series of five postings for the Archive highlighting the key primary sources behind One Minute to Midnight: Kennedy, Khrushchev and Castro on the Brink of Nuclear War. The information includes such episodes as a startling Soviet plan to destroy the Guantanamo naval base, the storage and handling of Soviet nuclear weapons on Cuba, and the “Eyeball to Eyeball” confrontation between US and Soviet ships that never happened. The posts can be found below:

What Cyber Treats Does STRATCOM Fear Most?

The classified testimony Brig. Gen. Mary F. O’Brien, USAF, gave the Senate Armed Services Committee this April is the newest FOIA release to the National Security Archive’s Cyber Vault project, and maps the threats that most concern U.S. Cyber Command. Many of the priority items are redacted, but usable unredacted portions of the document outline the role of Gen. O’Brien’s specific command, the Intelligence Directorate, in supporting USCYBERCOM operations. The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, August 9.

Tbt pick – Danger of Nuclear War through Miscalculation – 1983 Edition

This week’s #tbt pick is a 2015 posting from our Able Archer Sourcebook that highlights a 1990 Soviet “War Scare” report – previously classified “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON” and published only after a 12-year fight by the National Security Archive. The report reveals that the 1983 War Scare was real. According to the President’s Foreign Intelligence Advisory Board (PFIAB), the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during the 1983 NATO nuclear release exercise, Able Archer 83.

The PFIAB report also shows that President Reagan learned about, and reacted to, the danger of nuclear war through miscalculation. After reading a June 19, 1984, memorandum from CIA Director William Casey describing “a rather stunning array of indicators” during the War Scare that added “a dimension of genuineness to the Soviet expressions of concern,” the president “expressed surprise” and “described the events as ‘really scary.'”

The cover page of the PFIAB report, previously classified as “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON”. It took over 12 years to win this document’s release from the George H.W. Bush Library.

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Additional Documents to The Atomic Bomb and the End of World War II

August 7, 2017

Washington Embassy Telegram 5599 to Foreign Office, 14 August 1945, Top Secret

To commemorate the anniversary of the atomic bombings of Japan in August 1945, the Nuclear Vault is adding two documents to the posting: The Atomic Bomb and the End of World War II: A Collection of Primary Sources.

Document 91 is a British embassy telegram from 14 August 1945, portraying President Harry S. Truman weighing the possibility of a third atomic bombing in Japan, hours before he received the Japanese surrender notice.  Document 96 is the text or draft of the speech that Truman gave to the Gridiron Club dinner in December 1945, in which he discussed his role in the decision to use the bomb and its devastating consequences. Both documents have been in the open public record for years, but they are worth including by shedding further light on Truman’s thinking and his early justification for the use of the bomb.

The British embassy telegram, sent by Minister John Balfour, depicts a mid-day discussion with Truman on 14 August 1945.  Truman and his advisers were waiting for the official Japanese surrender announcement, but it had not yet arrived. During the course of the meeting, Truman observed “sadly that he now had no alternative but to order an atomic bomb to be dropped on Tokyo.”  Truman may not have known that another bomb would not be available for use for another week.  Moreover, the atomic bombing of Tokyo would have been a gratuitous act given that the March 1945 firebombing had destroyed the central city.  In any event, such an option quickly became irrelevant because the surrender announcement arrived in a few hours that day.

Months later, on 16 December 1945, Truman gave a speech at the annual dinner of the Gridiron Club, an exclusive society of newspaper bureau chiefs, publishers, and editors.  The event was off-the-record, although The Washington Post reported the skits and other entertainment.  While what Truman said on the spot appears to be unknown, he did prepare in long-hand a 15-page text that may have provided the basis of his remarks.  Concerning the atomic bombings, Truman said:

You know the most terrible decision a man ever had to make was made by me at Potsdam. ….  It was a decision to loose the most terrible of all destructive forces for the wholesale slaughter of human beings …  It occurred to me that a quarter of a million of the flower of our young manhood was worth a couple of Japanese cities, and I still think that they were and are. But I couldn’t help but think of the necessity of blotting out women and children and non-combatants. We gave them fair warning and asked them to quit. We picked a couple of cities where war work was the principle industry, and dropped bombs. Russia hurried in and the war ended.

President Harry S. Truman, Handwritten Remarks for Gridiron Dinner, circa 15 December 1945

Plainly, Truman was troubled by the bombings, but he found the use of the bomb justifiable by sparring the lives of U.S. troops.  The quarter of a million figure, however, far exceeded the estimate made by General Marshall in June 1945, which was in the range of 31,000 (comparable to Battle of Luzon) [See document 26]. By citing an inflated casualty figure, Truman was deploying the rationale that would become central to official and semi-official discourse about the bombings during the decades ahead.

Despite Truman’s claim that he made a “terrible” decision at Potsdam, he assigned himself more responsibility than the historical record supports. On the basic decision, he had already concurred with the judgments of Stimson, Groves, and others that the bomb would be used as soon as it was available for military use. On a targeting decision, however, he had a role.  At Potsdam, Secretary of War Stimson raised his objections to targeting Japan’s cultural capital, Kyoto, and Truman supported the Secretary’s efforts to drop that city from the target list.