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State Dept.’s Annual Historical Advisory Committee Report Slams DOD’s FRUS Performance – Again. FRINFORMSUM 9/26/2019

September 26, 2019

State Dept. Calls DOD’s FRUS Efforts Negligent and Egregious

For the second year in a row, the State Department’s Historical Advisory Committee (HAC) takes the Defense Department to task for its poor performance regarding its obligation to declassify select documents for the Foreign Relations of the United States series. In its annual report for 2018, the HAC says “once again the Department of Defense in 2018 performed so negligently and so egregiously violated the requirements mandated by the Foreign Relations statute that it more than offset the commendable efforts of the other agencies and departments.” (emphasis added) The HAC also cited the State Department’s 2017 rejection of the Office of the Historian’s request to renew three HAC members as a hindrance to the FRUS’s publication.

The FRUS series is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.” Steve Aftergood notes that, “To a large extent, FRUS is dependent on — and also helps to motivate — declassification of national security and foreign policy records. Such declassification in turn depends on the cooperation of other agencies who are called upon to review selected documents.”

HAC also expressed concerns about the National Archives and Records Administrations and the State Department’s Office of Information Programs and Services ability to manage the growing volume of electronic records, and warns that “insufficient funding, the lack of an appropriate secure space, and inadequate technology has incapacitated IPS’s reviews of central file P- and N-reels from the 1980 on, the quality of which is rapidly deteriorating.”

There were successes, however. The office published six FRUS publications (down from eight last year). These volumes are:

  1. FRUS, 1969–1976, Volume XIX, Part 2, Japan, 1969–1972
  2. FRUS, 1917–1972, Volume VIII, Public Diplomacy, 1969–1972
  3. FRUS, 1977–1980, Volume XVII, Part 2, Sub-Saharan Africa
  4. FRUS, 1917–1972, Volume VII, Public Diplomacy, 1964–1968
  5. FRUS, 1977–1980, Volume XXIV, South America; Latin America Region
  6. FRUS, 1977–1980, Volume XII, Afghanistan

The Historian’s Office also “completed its 10-year project to digitize and post online at all 512 back catalogue FRUS volumes dating back to the series’ origin in 1861. Each volume is fully-searchable and downloadable in multiple formats. Notwithstanding the difficulties, OH now plans to digitize all the microfiche supplements.”

The report praises the leadership of the IPS and the National Security Council’s Office of Access Management, as well as the Department of Energy, which improved its review despite the onerous page-by-page Kyl-Lott review requirements of documents for Restricted and Formerly Restricted Data, the “guidelines for which are ambiguous.” The report also notes that in 2018 the CIA did demonstrate its commitment towards its FRUS obligations, though expressed concern that the CIA’s Historical Review Panel did not convene a meeting in 2018, despite meeting twice annually in previous years.

New Info on the FBI’s Use of National Security Letters 

A FOIA lawsuit has won the release of FBI documents showing that the bureau has used National Security Letters to “obtain personal data from far more companies than previously disclosed.” The newly-released documents are letters terminating the gag orders that accompany national security letters (NSLs demand business records from a wide array of organizations for national security investigation and have been a long-standing concern for privacy advocates in part because of their insufficient judicial oversight and draconian nondisclosure agreements). The FBI tried to argue in court that even releasing the termination letters for the gag orders “could allow criminals and terrorists to learn sensitive information about the FBI’s investigative techniques.” But Judge Vince Chhabria of the Northern District of California found the FBI’s argument “dubious” and ruled in favor of the Electronic Frontier Foundation, which shared the documents with the New York Times.

JTF-Ares: Hacking ISIS

NPR’s Dina Temple-Raston’s “How the U.S. Hacked ISIS” is adding more information to the public record on Joint Task Force ARES and Operation Glowing Symphony, the U.S. Cyber Command’s attempts to curtail ISIS’s ability to use and exploit the internet. The piece relies on interviews with half a dozen people directly involved in the operation, and is an invaluable companion read to the National Security Archive Cyber Vault’s collection of FOIA-released records on JTF-ARES and Glowing Symphony, which shows the evolution of the US approach and “allows for at least a partial, preliminary judgment about the operation’s success.”

Are you a researcher interested in journalism and cybersecurity? If so, join us for a FOIA workshop specially curtailed for you on October 24.

Private Firms Profiting From ICE Detention Centers

FOIA records obtained by the National Immigrant Justice Center provide a “rare glimpse into dealings between private detention companies and government officials.” The documents include emails between senior officials at the for-profit Immigration Centers of America and the town treasurer of Farmville, Virginia, where ICA has a facility. Emailed invoices show that ICA charged Farmville around $2 million a month, of which the town of Farmville netted around $200,000 in profit. Jesse Franzblau, a senior policy analyst at NIJC, told Roll Call that “Taken altogether, the paper trail really shows this profit-driven incentivization for mass incarceration of immigrants.”

Letelier-Moffitt Assassination: State Department Officials Pushed for Pinochet’s Ouster

In the aftermath of the September 21, 1976, car-bombing that killed former Chilean ambassador Orlando Letelier and his colleague, Ronni Moffitt, in Washington D.C., four State Department officers began pressing for a policy to force General Augusto Pinochet from power, according to a declassified “Dissent Channel” memorandum recently published by the National Security Archive. “It is probable that President Pinochet ordered the assassination of Letelier and others,” the authors wrote in their appeal for an aggressive policy of ending normal relations with Chile until Pinochet was removed.  “Our only hope for justice is for the U.S. to take action that will bring it about.”

The Archive obtained the Dissent Channel memo through a lawsuit. Read the rest of the story here.

The Vela Flash: Forty Years Ago

An unidentified flash on 22 September 1979 in the far South Atlantic had a “90% plus” probability of being a nuclear test, according to a CIA finding from later that year. The document, among others uncovered recently through archival research, adds significant weight to the argument that the flash, detected by a U.S. VELA satellite, was not a natural event, as White House science advisers later insisted.

On the fortieth anniversary of the Vela incident, the National Security Archive supplements its earlier postings with documents recently obtained from the Jimmy Carter Library.  The collection includes new information on scientific intelligence provided by the Arecibo Observatory (Puerto Rico) concerning an ionospheric disturbance on 22 September that corresponded to similar evidence from Soviet nuclear tests in the early 1960s.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

TBT pick – As DOJ OIP’s Pustay Retires, We Highlight Just a Few of the Times Congress Faulted Her Agency’s Role Overseeing FOIA

This week’s #TBT pick is chosen with Buzzfeed News’ Jason Leopold’s successful FOIA request for documents on the retirement on the Department of Justice’s Office of Information Policy director, Melanie Pustay, in mind. The documents show that Pustay, who lead the department for 12 years, is leaving the office on October 3. Pustay lead the department for 12 years – to poor reviews from Congress and the open government community. In 2015 during the House Committee on Government Oversight and Reform’s hearing on FOIA, then chair Jason Chaffetz (R-Utah) told Pustay that she must be living in “la-la-land” if she thought 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.”

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Five Years Later, the Search Continues

September 26, 2019

Activists at a Global Action for Ayotzinapa demonstration in Oaxaca, Mexico. Credit: Montecruz Foto

By Megan DeTura

Today marks the fifth anniversary of the forced disappearances of 43 students from Ayotzinapa, Guerrero. In a case that has become a rallying cry throughout Mexico and the broader human rights community, the search for answers and justice continues as the fallout from a deeply inadequate government response intensifies.

In the immediate aftermath of the attack on the students, then President Enrique Peña Nieto launched an investigation that has since been sharply criticized by politicians, citizens, and most notably the Interdisciplinary Group of Independent Experts (or GIEI, by its Spanish acronym). GIEI’s two reports (issued in September 2015 and April 2016) indicated systemic delays and manipulation of evidence by government authorities, including their failure to follow up on suggested areas of investigation.

Since taking office on December 1, 2018, President Andrés Manuel López Obrador has taken a radically different stance toward the case from his predecessor. López Obrador, or AMLO as he is known, has prioritized uncovering the truth behind the 2014 case, taking steps to establish a truth commission led by Interior Deputy Secretary of Human Rights, Alejandro Encinas Rodríguez. The commission was inaugurated two days into AMLO’s administration and has since signed an agreement with the Office of the United Nations High Commissioner for Human Rights, which will reinforce its efforts via guidance and technical assistance. The UN OHCHR Statement may be found here.

The administration also launched a new criminal investigation, creating a special prosecutor’s office that will work to both correct irregularities and investigate the previous government’s mishandling of the case (link to Comunicado FGR 313/19). Led by special prosecutor Omar Gómez Trejo – a staff member and chief investigator for GIEI from 2015 to 2016 – , the office will work in conjunction with the truth commission in its quest for answers and accountability.

While such efforts have begun to provide a modicum of hope for the families of the 43 students, the consequences of the flawed investigation by the Peña Nieto administration continue to emerge. Just this month, a primary suspect in the case and a senior member of the drug cartel Guerreros Unidos – Gilardo López Astudillo or “El Gil” – was released after a judge found 62 of the 107 pieces of evidence submitted by the Mexican Attorney General’s Office inadmissible. More suspects have subsequently been freed on similar grounds, with the authorities’ use of torture and fabrication of evidence during the prior investigation resulting in the disqualification of 77 out of 142 individuals’ cases. Included in the releases were two dozen local police officers arrested for alleged participation in the attacks.

Now more than ever, the United States role in this investigation cannot be overlooked. As the National Security Archive’s previous post highlights, the U.S. government maintains pivotal records regarding members of the criminal gang Guerreros Unidos (United Warriors), who operated a drug distribution ring in Chicago. This same gang was heavily implicated in the disappearance of the 43, with Guerreros Unidos members in Iguala—together with local police—held responsible for the violent attacks on the students late at night on September 26 and into the early morning of September 27, 2014.

To date, all but two of the National Security Archive’s 102 Freedom of Information Act requests regarding the Ayotzinapa case have been denied or remain unanswered, further limiting the window for justice and fight against impunity. These requests date back to 2017. Given the fact that the DEA transcripts were among the few pieces of evidence not considered inadmissible in the case against “El Gil,” such evidence has become increasingly crucial.

As Mexican investigators delve into Ayotzinapa once more, this time on behalf of an administration that appears to be committed to solving the case, the US government has a fresh opportunity to assist in the effort. Whether by declassifying documents or providing information about Guerreros Unidos directly to Mexican investigators, such bilateral support will allow the Mexican government, truth commission, and criminal investigators to fully explore all possible lines of inquiry.

Until then, the National Security Archive observes the fifth anniversary of the disappearance of the 43 as the simultaneous anniversary of a failure to prosecute. We remain vigilant, dedicated to our call for open government, and ready to support this investigation together with the human rights community.  May the opportunity for our support arrive before another five years comes to pass.

Fighting ISIS and Learning Cyber-War

September 13, 2019

By Michael Martelle 

In November of 2016 USSTRATCOM authorized USCYBERCOM, then a component command, to begin executing offensive cyber operations against the Islamic State in support of Operation Inherent Resolve. The operation was given the name Operation Glowing Symphony, and the team responsible was Joint Task Force ARES. JTF-ARES was rapidly built from USCYBERCOM’s available Cyber Mission Force (CMF) teams for the express purpose of supporting OIR’s mission even before the command had reached full operational capability. The task force was directed to target Islamic State battlefield communications for intelligence collection and disruption in support of coalition troops on the ground as well as the terrorist organization’s use of social media. The operation is thought to be one of the largest, if not the largest, performed by USCYBERCOM and represents a landmark moment for the Department of Defense cyber-warfighting community.

Around the same time Operation Glowing Symphony was approved for execution, the USCYBERCOM Joint Information Operations Center (JIOC) Combat Targets Division gave a top-secret presentation titled “Improving Intelligence Support to Cyber Operations”. The presentation, obtained by the National Security Archive via FOIA, is largely a discussion of the utility of the joint targeting cycle (as outlined in JP 3-60 Joint Targeting) to cyber operations but closes with a call to incorporate lessons learned from the counter-ISIS mission into joint targeting doctrine. This suggests that USCYBERCOM anticipated the significance of Operation Glowing Symphony to their growth as a cyber-warfighting entity such that it should impact the formation of joint doctrine.

Without public updates to JP 3-60 Joint Targeting, or CJCSI 3162 – Battle Damage Assessment, it is currently unclear how JTF-Ares and Operation Glowing Symphony have impacted joint doctrine. It is clear, however, that the counter-ISIS mission impacted how USCYBERCOM is approaching today’s challenges. General Nakasone, dual-hatted as both head of the NSA and commander of USCYBERCOM and the first commander of JTF-Ares when he was the commander of US Army Cyber Command, gave an interview to NPR last August in which he discussed how the formation of today’s Russia Small Group to combat the Kremlin’s information campaigns was guided by the formation of JTF-Ares. “So this concept of a task force lives on. A lot of that thinking came from what we were doing in 2016. It’s powerful to bring a number of different elements of a team together and be able to form something very rapidly to address a threat.”

There is a temptation to relegate the Operation Glowing Symphony chapter of cyber-warfare history to the “distraction” pile. It was, after-all, directed against a relatively unsophisticated adversary, undertaken by a still-developing force, and lacks publicly available success indicators. This would be a mistake, however. Operation Glowing Symphony gave USCYBERCOM their first “real-world” test on a problem that shares many traits with what large-scale cyber-warfare with a near-peer competitor may look like. Glowing Symphony was global in scale, required a significant degree of international coordination and deconfliction, involved coordination with kinetic operations in a manner that should inform how the US military approaches the cyber-enabled battlefield, and demonstrated the ability for USCYBERCOM to rapidly organize operational groups tailor-made to unique challenges like global terrorism or Russian influence campaigns. Operation Glowing Symphony was a watershed moment for US security capabilities and should be studied as such.

Michael Martelle is a research fellow with the National Security Archive’s Cyber Vault project.

(@MartelleMichael , @NSArchiveCyber)

Declassified CIA Cables Recount “A Poignant Moment” With KSM, Legal Group’s Commitment to Lawfully Employ Methods “Even the Israelis May Not”: FRINFORMSUM 9/12/2019

September 12, 2019

“A Poignant Moment” With KSM Between Interrogation Sessions

The CIA cable’s author called the incident with accused 9/11 mastermind Khalid Sheikh Mohammed “a poignant moment;” in it, a frog jumped out of a drain in KSM’s cell during the course of an interrogation, and KSM asked that the frog be allowed to stay and not be taken outside. The cable is one of several obtained from a FOIA lawsuit concerning the actions of Drs. James Mitchell and Bruce Jessen, who the agency paid over $80 million to develop and run its torture program, and that were recently published by The Intercept on the anniversary of 9/11. The cables catalog the alternating horror and banality of KSM’s 25-day enhanced interrogation session and show the CIA’s Legal Group, Counterterrorist Center, telling the interrogators to “rule out nothing whatsoever that you believe may be effective; rather, come on back and we will get you the approvals. CTC/LGL officers remain available 24/7 to ensure immediate assistance and documentation on any proposals. … We lawfully may employ methods that even the Israelis may not.” The cables collectively confirm many of the findings of the Senate Intelligence Committee’s report on the CIA’s torture program – namely that the CIA’s “committed belief that enhanced measures always move detainees closer to an imagined breaking point that, once met, force them to produce more accurate information” – was wrong.

National Security Archive litigation has also contributed to significant declassifications concerning the CIA’s torture program. The Archive’s lawsuit for cables authored and authorized by CIA director Gina Haspel during her tenure as chief of base at a CIA black site prison in Thailand in 2002 helped build a detailed chronology of Abd al-Rahim al-Nashiri confinement and treatment at the site. The torture chronicled in the cables included being slammed against walls, forced nudity, confinement in coffin-sized boxes, shackles and hoods such as seen in the infamous Abu Ghraib photographs, and waterboarding – which U.S. prosecutors established as a war crime in proceedings against Japanese soldiers after World War II.

ICE’s Inhumane Use of Solitary Confinement

A Department of Homeland Security review – obtained by the Project on Government Oversight through FOIA – reports that an Immigration and Customs Enforcement detention center in California “has kept an ‘alarming’ number of detainees with serious mental illness confined in solitary, and many have been isolated for ‘shockingly’ long periods.” In one instance at the Adelanto, CA detention center, ICE kept a mentally ill detainee in solitary confinement for a cumulative 904 days, a move DHS called inhumane and a violation of its policies (DHS also called the medical leadership at the facility incompetent). The Adelanto facility is the second-largest of ICE’s adult detention centers and is privately run by the GEO Group. ICE publicly disagreed with DHS’ findings, responding with a separate inspection performed by a “company on contract with the agency” that found the facility met all of ICE’s standards.

90 New Army Posts Added to Growing List of Bases with Contaminated Water  

The names of 90 Army, Army Reserve, and Army National Guard posts have been added to a growing list of bases with contaminated drinking water, thanks to a FOIA request from the Environmental Working Group. The Army responded to the FOIA release by saying that despite the presence of contaminants linked to cancer and other medical issues, nobody at the posts is exposed to unsafe levels of the chemicals because the Army is taking steps to filter the water in accordance with Environmental Protection Agency regulations. The Military Times notes that the recent disclosure brings the total number of military facilities with contaminated water to 297, nearly a third of which are Army posts.

Is Your DMV Selling Your Data? Probably.

A series of public records requests filed by Motherboard have revealed that DMVs across the country are selling drivers’ personal information to businesses, including private investigators, credit reporting companies, and tow companies, with DMVs sometimes netting tens of millions of dollars in the sales. The state of Virginia, for example, has sold data to over 100 private investigative firms. Motherboard reports that “multiple DMVs stressed” that they were not selling social security numbers or drivers license photos, but the sale of personally identifying information to third parties remains a significant privacy concern – particularly in states that do not require private investigators to be licensed. Motherboard notes that while the sales are legal, they are based on a privacy law, the Driver’s Privacy Protection Act, which was written in the 1990s before the rapid expanse of technology and associated privacy concerns.

Detection of the First Soviet Nuclear Test, September 1949

Seventy years ago, Director of Central Intelligence Admiral Roscoe Hillenkoetter handed President Harry Truman a carefully worded report of “an abnormal radio-active contamination” in the Northern Pacific that greatly exceeded normal levels in the atmosphere. While uncertain as to the cause, the DCI’s first hypothesis was “An atomic explosion on the continent of Asia.”  This proved to be accurate – it was the first Soviet test of a nuclear device. The National Security Archive commemorated the anniversary of the beginnings of the superpower nuclear arms race by publishing newly declassified documents and context surrounding the U.S. discovery of the landmark Soviet test. Get the rest of the story – and the accompanying 29 declassified documents – here.

Targeting in Cyber Operations: FOIA release discusses considerations of US military targeting doctrine

Recently declassified materials from U.S. Cyber Command provide new details about an important component of cyber operations – the targeting process – as well as clues to considerations regarding the potential linkage between cyber and traditional military force in U.S. planning. The Archive’s Cyber Vault has published a presentation, obtained through FOIA, by the USCYBERCOM Joint Intelligence Operations Center (JIOC), Combat Targets Division entitled “Improving Targeting Support to Cyber Operations.” The presentation, among other things, confirms that the joint targeting cycle has been used for cyber operations, and suggests that Operation Glowing Symphony (the counter-ISIL operation undertaken by USCYBERCOM JTF-ARES) provided significant lessons for cyber targeting. Get the rest here.

Interested in the work of the Archive’s Cyber Vault? Then join our Cyber Fellow Michael Martelle on September 16 at the Atlantic Council for a conversation about recent declassifications concerning the counter-ISIL efforts of JTF Ares and Operation Glowing Symphony. Martelle will be speaking with the Atlantic Council’s Dr. Trey Herr and Pete Cooper, the U.S. Military Academy’s Audrey Alexander, the Naval War College’s Dr. Nina Collars, and the Marine Corps Forces Cyperspace’s Command’s Riley Jennifer.

Register for the event here, or watch the livestream here.

Archive Fellow Barbara Elias on America’s Longest War

National Security Archive fellow – and former director of the Archive’s Afghanistan/Taliban project – Professor Barbara Elias recently spoke with Maine Public Radio about the US’s current negotiations with the Taliban, and a possible end to America’s longest war. Elias is joined by Wilson Center scholar and CNN analyst Aaron David Miller, former Ambassador to Chad and Charge d’Affaires in Tripoli, Libya Larry Miller, and senior fellow at the Center for the Study of the Presidency and Congress James Kitfield, for a discussion on the origins of the war, why it has lasted as long as it has, and what might come next.

TBT Pick – The September 11 Sourcebooks

This week’s #TBT pick commemorates the 18th anniversary of the September 11 attacks, and is our September 11 Sourcebooks. This unique resource is a collection of 15 primary source collections covering topics including U.S. terrorism policy, the declassified U.S. government record on the Taliban, released Federal Aviation Administration 9/11 hijacking reports on the confused U.S. response to the terrorist attacks, and more.

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Courts Can Force Agencies to Post Records in FOIA Reading Rooms: FRINFORMSUM 9/5/2019

September 5, 2019

USDA stopped making animal welfare reports public in 2017. Photo by Michael S. Williamson, The Washington Post, Getty Images.

Courts Can Force Agencies to Post Records in FOIA Reading Rooms

The Ninth Circuit Court of Appeals recently ruled that courts can force federal agencies to post records online to their FOIA reading rooms. This welcome ruling brings attention to the half-hearted attempts some agencies take to adhere to FOIA’s requirement that agencies post key records online, ensure that their websites provide citizens with detailed guidance on making information requests, and use new information technology to publish information proactively.

The Ninth Circuit case concerns the Department of Agriculture’s widely-criticized 2017 decision to remove animal welfare compliance data from its website on the grounds that the records risked revealing private information about entities the USDA regulated. The Justice Department’s Peter Bryce argued in court filings at the time that the Agriculture Department had no obligation to post animal abuse data on the department website in advance of FOIA requests, noting that, “Perversely, plaintiffs seem to suggest that such routine, proactive posting of records should itself trigger a mandatory legal obligation…thereby making such proactive disclosures legally obligatory (and, according to plaintiffs, irrevocable) once the records are posted to the agency website.” The Justice Department defended this position in court even though the FOIA clearly states (5 U.S.C. 552(a)(2)) that agencies are required to identify records, “that because of the nature of their subject matter… have become or are likely to become the subject of subsequent requests for substantially the same records,” and make them available in electronic format – in other words, post them on their website. This is why, prior to the Trump administration, the Agriculture Department had been following the clear language of the law and posting the databases that were widely used by the public. (The strong language in the FOIA is reinforced by the Federal Records Act (44 USC 3102), which states that each federal agency must have a records management program that establishes “procedures for identifying records of general interest or use to the public that are appropriate for public disclosure, and for posting such records in a publicly accessible electronic format.”)

The case was initially dismissed by U.S. District Judge William Orrick III, who found “courts lack power to force government agencies to make documents available to the public at large, as opposed to individual requesters, under the Freedom of Information Act.” A 2-1 ruling from the Appeals panel disagreed, arguing that if that were true, “An agency would have no enforceable duty to post its important staff manuals, or its interpretation of the statute it’s charged with enforcing, or its final opinions in agency adjudication.”

NYT FOIA Primer Highlights Increasing Importance of Litigation

“The processing of the request was highly irregular. The withholding was entirely unjustified … The document was probably withheld for political reasons.” This anonymous note was included in a response to a New York Times FOIA request, and highlights why many organizations, including the Times, Buzzfeed, the Washington Post, the National Security Archive, and many others, are increasingly turning to the courts to force agencies to properly release records in response to FOIA requests.

While litigation is increasingly important, it is not a resource available to every-day requesters and courts cannot be relied upon to fix how FOIA is administered. For an in-depth look at how to combat efforts to weaken the FOIA by those charged with enforcing it, read a piece by my colleague Nate Jones, FOIA: A Colossus Under Assault. Jones suggests a possible solution is an executive branch FOIA oversight mechanism similar to the Council of Inspectors General on Integrity and Efficiency.  “Why, after all, are Inspectors General usually feared and FOIA officers usually ignored or scoffed at?  Because, I believe, IGs have an oversight entity with clout backing them up so that they can receive the documents they require, meet their deadlines, and independently follow their charge as described by the law.”

EPA No Longer Accepting FOIAs by Email, Makes it More Difficult to FOIA Inspector General

The Environmental Protection Agency will no longer accept FOIA requests via email, and will now require requesters to either submit requests through postal mail or an online portal. NBC’s Scott MacFarlane noticed the change, tweeting an image of an automated response to his emailed FOIA request. The automated email states, “You submitted a request for EPA records using a method that is no longer authorized by EPA’s FOIA regulations.” Troublingly, the portal the EPA requires requesters to use if they don’t want to send their requests snail mail limits the number of characters a requester can use, and doesn’t allow requests to be submitted to the EPA’s inspector general’s office.

The Journal of Civic Information

The inaugural issue of the Journal of Civic Information – an “open-access, interdisciplinary journal that publishes peer-reviewed research related to the field of accessibility of public information” – is now available online. The journal is a project of the Brechner Center for Freedom of Information at the University of Florida, and the first issue has articles on “Access to Government Officials in the Age of Social Media,” Tracing Home Address Exemptions in State FOI Laws,” and more.

Guatemala Shutters Anti-Corruption Commission

Guatemala’s UN-backed anti-corruption probe, the International Commission Against Impunity (known by its Spanish acronym, CICIG) is officially closed. Outgoing Guatemalan president Jimmy Morales announced in September 2018 that he would not renew CICIG’s mandate (Morales and his National Convergence Front are under investigation by the Attorney General’s Office as a result of CICIG’s work), which the US has long-supported. CICIG’s anti-corruption victories included racking up over 300 convictions, which ensnared two former presidents who are now in jail as a result.

The Morales administration is also trying to close the country’s national police archives under the guise of national security concerns. More on those efforts here.

Police in the capital of Dili, East Timor, assault a civilian on August 26, 1999. Immediately after this photo was taken by Time Magazine photographer John Stanmeyer, the officers shot and killed the man. (Photo credit: John Stanmeyer, Time Magazine; posted on Iconic Photos)

U.S. sought to preserve close ties to Indonesian military as it terrorized East Timor in run-up to 1999 independence referendum

The U.S. government was aware for months that the Indonesian military had created, and was arming and directing paramilitary militias in East Timor in the leadup to the territory’s historic August 30, 1999, independence referendum, according to recently declassified documents posted by the Archive.  The documents provide an unprecedented window into U.S. policymaking and reporting in the aftermath of the May 1998 resignation of Indonesian President Suharto; the unexpected decision of President B.J. Habibie in January 1999 to suggest that East Timor would be allowed to vote on its political future after 24 years of Indonesian military occupation; the negotiations which led to the formation of the United Nations mission in East Timor (UNAMET); the months-long campaign waged by the Indonesian armed forces and its militia proxies in East Timor to terrorize the population and prevent it from voting for independence; and the systematic campaign of murder and destruction carried out by the Indonesian armed forces and its militia proxies in the wake of the referendum.

The newly released documents add to the significant declassified record on U.S.-Indonesia relations, which includes important materials the National Security Archive has posted on topics such as Indonesia’s occupation of East Timor and regime human rights abuses dating back to the mid-1960s. Read the rest here.

Cyber Operations in Context: A Look at Joint Task Force Ares

Join our Cyber Fellow Michael Martelle on September 16 at the Atlantic Council for a conversation about recent declassifications concerning the counter-ISIL efforts of JTF Ares and Operation Glowing Symphony. Martelle will be speaking with the Atlantic Council’s Dr. Trey Herr and Pete Cooper, the U.S. Military Academy’s Audrey Alexander, the Naval War College’s Dr. Nina Collars, and the Marine Corps Forces Cyperspace’s Command’s Riley Jennifer.

Register for the event here, or watch the livestream here.

#TBT Pick – “Cogs of War”

This week’s #TBT pick is chosen with Harper’s Magazine’s recent publication of Anatoly Chernyaev’s December 30, 1979 diary entry, which was translated into English and published for the first time earlier this year by the Archive. The Archive published the English translation of Chernyaev’s 1979 diary to commemorate what would have been his 98th birthday; the selections trace “the further decline of the top Soviet leadership, the widening gap between standards of living in the West and the Soviet Union, and the disastrous decision to invade Afghanistan.”

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Judge Cites “Considerable Public Importance” in Khashoggi FOIA Case, Orders State to Process 5,000 Pages a Month: FRINFORMSUM 8/8/2019

August 8, 2019

Judge Orders State to Process 5,000 Pages a Month in Khashoggi Case – 4,358 Pages More than Average Monthly Schedule

Judge Paul Engelmayer for the Southern District Court of New York has ordered the State Department to process 5,000 pages of responsive documents a month in a FOIA lawsuit for records concerning the disappearance of Washington Post journalist and Saudi national, Jamal Khashoggi. The Judge, citing the “considerable public importance” of the request, also ordered the Defense Department to process 2,500 pages of responsive documents by the end of June, and 5,000 pages per month after that.

The opinion is notable considering most court-ordered schedules hover in the range of 300-500 pages a month; indeed, the State Department’s Information Programs and Services Director Eric Stein initially requested the Department only be compelled to produce 300 pages a month. In their respective declarations, both Stein and the Defense Department’s Associate Deputy General Counsel, Mark Herrington, argued that complying with the court order would negatively impact their offices’ ability to respond to other FOIA requests.

The State and Defense declarations provide some interesting insights. Stein’s declaration notes that:

  • The department is under court order to produce documents in more than 50 other cases;
  • Judge Engelmayer’s production schedule is the most “onerous” State has handled (the only comparable case being for Secretary Clinton’s emails);
  • There are “over 100 additional FOIA litigation cases that are in other stages of litigation and that require the same resources (for example, to compile Vaughn indices justifying redactions);”
  • and “In addition to the FOIA requests that are not in litigation, over 50 other FOIA requests in litigation are actively producing documents, including 12 other cases with court ordered production schedules. The average monthly production rate in those cases is 642 pages.” (emphasis added)

The Defense Declaration is shorter on quantitative data, but does state that the DOD’s Office of Information Council does not possess eDiscovery software and that each record must undergo a manual line-by-line review by OIC staff.

FOIA Council Recommends Standardizing FOIA Software

The Federal News Network’s Jory Heckman has a good piece on the latest Chief FOIA Officer Council’s meeting, available here. The highlight is the council’s subcommittee on technology’s recommendation of “adding commercial, off-the-shelf FOIA and records management software to the General Services Administration’s schedules program, giving agencies an opportunity to purchase these tools without having to shop around for the best deal.” The Veterans Health Administration’s Michael Sarich said the move, which is seen as a “stepping stone for greater adoption of artificial intelligence tools,” could be a “force multiplier” for reducing backlogs and growing numbers of FOIA requests.

Interior Copied FOIA Program Notes from Under-Performing Agencies

FOIA-released emails show that the Interior Department took advice from the FBI and the Environmental Protection Agency when crafting bad new FOIA regulations that allow the department to:

  • Preemptively reject what it defines as “unreasonably burdensome” requests;
  • Impose a monthly limit to the number of either pages or requests from a single requester the agency will process;
  • and a host of other changes that may make it more difficult to obtain fee waivers and expedited processing.

Rachel Spector, an official with Interior’s Office of the Solicitor who set up a meeting with the FBI’s FOIA unit, wrote to the FBI stating “I understand from my discussions with the US Attorney’s Office in D.C. that the FBI’s FOIA program and strategy in FOIA litigation is pretty much the ‘gold standard.’” (It isn’t.) Spector seemed especially interested in copying the FBI’s “500-page” per month policy, which caps document releases to 500 pages a month per requester.

The Interior Department also expressed interest in the EPA’s proposed new FOIA regulations which it submitted to the Federal Register without public comment in June. Under the new EPA regulations, “the administrator and other officials would be allowed 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.” The new EPA regulations appear to expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allows the agency to functionally ignore any requests sent to the EPA’s regional offices, which have historically accepted FOIA requests, and not national headquarters.

Secret Service Releases Records on Chinese President Xi’s 2017 Visit to Mar-a-Lago

The Secret Service has just released nearly 150 heavily-redacted pages concerning a Chinese delegation’s visit to President Trump’s winter White House, Mar-a-Lago, in April 2017. The release is a belated response to a Freedom of Information Act appeal submitted 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), as part of a lawsuit to open the White House visitor logs and the records of presidential visitors to Trump properties, including Mar-a-Lago.

The new release on the Chinese delegation led by President Xi Jinping contains little substance and even redacts Xi’s birthday, which is public information (Wikipedia says his birthday is June 15, 1953).

The release comes a month before the Second Circuit Court of Appeals hears oral arguments in the case, Doyle v. DHS.  The government claims that the records, which were routinely released by the Obama administration with no harm to national security, are presidential records. The Archive, CREW, and Knight argued in court filings that the logs are agency records clearly subject to the FOIA, not presidential records that only become available starting five years after the president leaves office. The appeal challenges the district court decision that effectively let “the Secret Service hide their records of everyone who lobbies the President,” according to Archive Director Tom Blanton.

Cyber Brief on Russian APTs at the Olympics

The Archive’s latest Cyber Brief addresses potential cyber threats at the 2020 Olympic Games in Tokyo, particularly threats from Russia, which is currently in danger of being suspended from the Olympics for the second consecutive time due to allegations the country forged medical documents and paperwork relating to fake athlete clinics. Given the operations by Russian-affiliated advanced persistent threats (APTs) during the PyeongChang 2018 Winter Olympic Games, there are credible expectations for cyberattacks in Tokyo. Coordinated cyber campaigns on past Games and affiliated organizations have been traced back to Russian intrusion sets, including APT actors Sofacy and Turla Group (also known as Fancy Bear and Venomous Bear, respectively).

The Vault is posting a variety of primary-source documents and other materials that offer additional context to the issues that includes documents pertaining to the Tokyo 2020 Olympics, the International Olympic Committee’s (IOC) anti-doping rules, the World Anti-Doping Agency’s (WADA) investigation into Sochi allegations, and the DOJ’s indictment of GRU officers.

The Cyber Vault is Hiring!

The National Security Archive’s fantastic Cyber Vault is currently looking for a research assistant beginning September 3. It’s a great opportunity for DC-area grad students – please share widely!

TBT Pick – The INF Treaty, 1987 – 2019

This week’s #TBT pick is chosen with the recent expiration of the Intermediate-range Nuclear Forces Treaty in mind. This week’s posting – The INF Treaty, 1987-2019 – includes key documents from both Soviet and American sources tracing the entire year of INF negotiations in 1987, and highlights the remarkable proposals on the table at the time (mostly from the Soviet side) for even more intrusive inspections and even more dramatic cuts in both strategic and conventional weapons.

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Advisory Panels in Tenuous Position under Trump, the Fight Intensifies for Guatemala’s Police Archives, and More: FRINFORMSUM 8/1/2019

August 1, 2019

Advisory Panels in Peril?

The JASON Defense Advisory Panel, which advises the U.S. government on defense science and technology matters, is the latest advisory panel the Trump administration is attempting to dismantle. The panel was established in 1960 and a review by the Federation of American Scientists reports that about half of the its reports are unclassified (a selection of reports dating as recently as 2018 can be found here). The Trump administration disbanded another science panel – the Department of Justice’s forensic science panel – in 2017.

Other disbanded panels include a State Department panel dealing with nuclear nonproliferation, the Independent Security Advisory Board, which was suspended in 2018. Two Navy committees were also on the chopping block this February – the Naval Research Advisory Committee and the Secretary of the Navy Advisory Panel.

The CIA’s Historical Review Panel also appears to be a victim of this trend. Dr. Robert Jervis, the panel’s chair, announced in an H-Diplo posting earlier this year that the panel did not meet in June 2018 as planned, and that members were recently informed “the Panel is being restructured and will not meet again until this has been done. The reasons for this remain unclear to us, and no schedule for resumed meetings has been announced.” Jervis noted that the State Department’s Historical Advisory Committee continues to monitor the agency’s cooperation in producing FRUS volumes, but goes on to make several vague references to possible changes to the way the agency reviews historical documents.

A CIA spokeswoman recently told Reuters that the panel would be reconstituted with new members later this year.

Guatemalan Police Archives.

Guatemala’s Right to History  

The Archive’s Kate Doyle talked with Foreign Policy this week about Guatemalan president Jimmy Morales’ efforts to close the country’s national police archives under the guise of national security concerns. Despite the significance of the records, which document the central branch of Guatemala’s security forces – an entity so deeply involved in repression during the armed conflict that the 1996 peace accords mandated it be completely disbanded – Doyle says, “The U.S. is saying nothing. The U.S. Embassy has been incredibly absent on these issues. They are not doing anything.” She added that the “assault on the police archive [is part of a] broader attack against human rights, justice, and anti-corruption efforts.”

The long-abandoned police archives were discovered in 2005 and contain 80-million pages covering the activities of the National Police from the late 19th century until its dissolution in 1997.  With the help of the National Security Archive and other organizations, the files were rescued from their deteriorating state, restored, and are in on-going process of being fully digitized, archived and made available to the public. Today, the Guatemalan National Police Archive constitutes one of largest and most revealing collections of “dirty war” documentation ever unearthed in Latin America. The records have also served prosecutors as crucial evidence in human rights criminal cases, leading to the conviction of military and police perpetrators.

Doyle voiced additional concerns to The Intercept in June that Morales may not only use national security concerns as a cover for closing the archives, but that the government may take legal action against the Swiss government and the University of Texas at Austin, which both have backup copies of the archives.

For more information on the police archives, visit our special collection.

NARA Releases Racist Reagan Tapes it Previously Withheld on Privacy Grounds

Members of the Tanzanian delegation danced on the floor of the General Assembly after the United Nations voted to recognize the People’s Republic of China in October 1971, a move that incensed then-Governor Ronald Reagan. Reagan called President Nixon after that vote and said, “To see those, those monkeys from those African countries—damn them, they’re still uncomfortable wearing shoes!” Nixon taped the recording, which later became the property of the Nixon Presidential Library, and later the National Archives (NARA).

NARA released a redacted version of the tape in 2000, but withheld the racist portions of the conversation to protect Reagan’s privacy – until Tim Naftali, a former director of the Nixon Presidential Library and current NYU professor, filed a successful request for an unredacted copy of the tape.

Paul Musgrave has a succinct and interesting explanation of how the Presidential Records Act of 1981, and its privacy exemption, applied to presidents like Nixon whose records pre-dated the Act. The question remains why the privacy exemption was extended to Reagan.

NSA Kept American’s Phone Records It Shouldn’t Have Had in the First Place

The National Security Agency (NSA) announced last year that it had purged Americans’ phone records that it had “inappropriately” collected as part of its drag-net surveillance of domestic phone calls. A new NSA IG report released through an ACLU FOIA lawsuit shows that the agency “inadvertently” continued to keep some of those records. The agency deleted the remaining data after it IG’s office discovered the error.

Earlier this year the Wall Street Journal reported that the NSA had formally recommended terminating its controversial phone and text surveillance program, which has been frequently criticized for violating Fourth Amendment protections against warrantless search and seizure. The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper’s later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans. Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. “The candle is not worth the flame,” a senior intelligence official told the Journal.

As the telephone metadata collection program approaches its final days, the National Security Archive’s Cyber Vault has pulled together a range of materials that chart its legislative origins and evaluate it from the perspective of effectiveness, legal and privacy concerns, and other considerations.

Air Force Fleet Readiness Continues to Decline

The percentage of Air Force aircraft that are able to fly has decreased each year since at least FY 2012, and an Air Force Times FOIA request shows that “By fiscal 2017, that metric had plunged to 71.3 percent, and it dipped further to 69.97 percent in 2018.” The Times reports this 8-percentage point drop continues despite the Air Force’s growing concerns and attempts to reverse the slide. Several trends are particularly worrying, including:

  • “The F-35A Lightning II fighter, down 5 percentage points. Fewer than half of the Air Force’s 148 F-35s were deemed mission-capable in 2018;
  • The F-15E Strike Eagle, down 4 percentage points;
  • The CV-22 Osprey, down 7 percentage points.”

TBT Pick – The Gulf War 29 Years Later

This week’s #TBT pick is chosen with the 29th anniversary of the Gulf War in mind. This 2001 posting includes a variety of documents from the Defense Intelligence Agency, Central Command, Space Command, and more, which cover internal decision-making as well as diplomatic, economic, and conventional military activities. This briefing book primarily focuses on the intelligence, space operations, and Scud-hunting aspects of the war.  It also includes a report describing how Desert Storm affected China’s view of future warfare, a document that raises questions as to what lessons other nations have drawn from U.S. military engagements in the Middle East and the Balkans.

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Court Rejects Competitive Harm Argument in Pain Pill Database Release: FRINFORMSUM 7/18/2019

July 18, 2019

DEA’s Pain Pill Database Released

The Drug Enforcement Administration’s controlled substances database – otherwise known as the Automation of Reports and Consolidated Orders System, or ARCOS – is a comprehensive index of every pain pill sold in the United States. And now data collected between 2006 and 2012 is public and searchable – thanks in part to the efforts of the Washington Post and West Virginia’s Pulitzer Prize-winning HD Media. During the 7-year stretch of data obtained by court order, a period that saw 100,000 deaths from opioid overdoses, ARCOS tracked 380 million transactions, pinpointing where each of the country’s 76 billion oxycodone and hydrocodone pills were shipped.

The ARCOS database joins the Consumer Financial Protection Bureau’s Consumer Complaint Database (which then-acting director Mick Mulvaney tried to take offline) as among the most significant databases to be made public by the federal government.

The news organizations won access to the database in a ruling from the Sixth Circuit Court of Appeals as part of a mammoth multi-district litigation effort on behalf of 1,300 plaintiffs against manufacturers, distributors, and retailers of prescription drugs – whose transactions the DEA monitored through its ARCOS database. Over the course of the years-long litigation, the DEA and defendants argued that release of the database would threaten ongoing law enforcement efforts and that “producing the data would cause Defendants ‘substantial competitive harm’ by revealing ‘details regarding the scope and breadth of [each manufacturer’s and distributor’s] market share.’”

The Sixth Circuit disagreed, and U.S. Circuit Judge Eric Clay wrote for the majority that, “In ordering the DEA to disclose the ARCOS data to plaintiffs, the district court specifically held that the DEA did not meet its burden of showing ‘good cause’ not to comply with plaintiffs’ subpoena for the ARCOS data…The district court, comparing the opioid crisis to a plague, even stated that because it is possible to ‘discover how and where the virus grew’ by studying the ARCOS data, disclosure of the ARCOS data ‘is a reasonable step toward defeating the disease.’”

The Sixth Circuit ruled in this matter (which was not a FOIA case) four days before the Supreme Court broadened FOIA’s Exemption 4, which protects privileged or confidential trade secrets and commercial or financial information, in a 6-3 decision in the case of Food Marketing Institute v. Argus Leader Media. The case, which was the first the justices heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP).

USDA Squashes Climate Change Report

Top officials at the Agriculture Department killed the release of a 33-page draft report on how the department could help agriculture understand, adapt to, and minimize the impact of climate change. Politico obtained a copy of the September 14, 2017, report, entitled “USDA Climate Resilience Science Plan,” which was intended to update a 2010 plan released during the Obama administration and hoped to make climate change “an explicit and functional component” of all USDA work. Politico’s Helena Bottemiller Evich summarizes the 2017 plan as setting “ambitious goals for addressing a broad range of climate change effects. It proposes ‘moving agriculture and natural resource systems to carbon neutral and beyond’ by reducing greenhouse gas emissions through practices such as increasing carbon storage in crops and soils. It also notes the importance of studying the ‘human dimensions’ of climate change — such as how it affects production, trade, pricing, and producer and consumer behavior.”

Interior Department Official’s Cozy Relationship with Koch-Funded Think Tank

Documents released through a FOIA lawsuit are showing the close connection between a Department of Interior official – Assistant Secretary of the Interior for Insular Areas Doug Domenech – and his former employer, the Koch-funded Texas Public Policy Foundation. The documents, which come at the same time the Interior Department’s inspector general is investigating Domenech and five other senior officials for alleged federal ethics rules violations, focus on lawsuits TPPF filed against the Interior Department prior to the Trump administration (one suit involved a property dispute with the Bureau of Land Management and the other “centered on TPPF’s efforts to remove Endangered Species Act protections from an imperiled arachnid called the Bone Cave harvestman, a species that resides in Texas”).

The FOIA-released documents also show Domenech helping TPPF’s general counsel, Robert Henneke, skirt the department’s FOIA queue. In June 2017 Henneke filed a FOIA request for a list of lawsuits filed against the department since President Trump’s inauguration, and writes to Domenech for help “sorting out the apparent miscommunication” with the FOIA office, which seems to have labeled the request for records voluminous; Domenech quickly put Henneke in touch with DOI’s top lawyer, Daniel Jorjani.

“Atoms for Peace” Was Actually a “Threat to Peace

The latest addition to the award-winning publications series The Digital National Security Archive provides a trove of important historical documentation on global nuclear proliferation, including numerous new details and insights into the clandestine programs of India, China, Israel, and other would-be nuclear states. U.S. Nuclear Nonproliferation Policy, 1954-1968: From Atoms for Peace to the NPT, compiled and edited by National Security Archive nuclear expert William Burr, explores a crucial period in the nuclear era when many of the problems and challenges facing today’s nonproliferation regime began to emerge.

The new collection, totaling over 2,300 documents and 12,645 pages and distributed by the academic publisher ProQuest, fills significant research gaps for historians and offers a variety of document-based cases to help inform public debate as well as government decision-making about curbing the spread of nuclear weapons.

Cyber Vault – GPS Wars

This week’s National Security Archive Cyber Brief focuses on military considerations for global navigation satellite systems, such as the U.S.’s Global Positioning System (GPS), Europe’s Galileo, and Russia’s GLONASS. As Cyber fellow Michael Martelle notes, “Military operations are particularly reliant on GNSS for navigation systems on aircraft, vessels, vehicles, and unmanned vehicles including drones and missiles; synchronizing operations; and pinpointing targets. The Persian Gulf War has become the exemplification of how readily-available PNT information boosts military effectiveness. Beyond the use of GPS for navigation, network-centric warfare relies on precise timing information to enable secure real-time communications.” The posting includes 11 documents covering topics such as navigation warfare and the need for resiliency measures.

TBT Pick – Apollo 11 and Covert Lunar Programs

This week’s #TBT pick is chosen with the 50th anniversary of the Apollo 11 mission in mind. The 2014 posting from our intelligence project highlights the covert side of the United States’ lunar programs and focuses on three topics — early U.S. military plans, including the possibility of conducting nuclear tests in space, the use of the moon to reflect signals for military or intelligence purposes, and U.S. intelligence analyses and estimates of Soviet missions and their intentions to land a man on the lunar surface.

The posting includes:

  • Army and Air Force studies from 1959 – 1961 on the creation of a military lunar base, with possible uses as a surveillance platform (for targets on earth and space) and the Lunar Based Earth Bombardment System);
  • A study on the detonation of a nuclear device on or in the vicinity of the moon; and
  • the U.S. theft and return of a Soviet space capsule during an exhibition tour.

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Trump and Putin’s G20 Meeting Puts Spotlight on the PRA, Senators Hone in on Bad EPA FOIA Regs, and More: FRINFORMSUM 6/27/2019

June 27, 2019

Trump and Putin’s G20 Meeting Puts Spotlight on the PRA

President Trump will be meeting with Russian President Vladimir Putin this Friday at the G20 meetings in Osaka, Japan, and the pressure is on the president not to destroy or tamper with the notes of the meeting, which must be preserved under either the Presidential Records Act or the Federal Records Act. The Trump administration’s refusal to comply with the House Oversight Committee’s requests “for answers about whether Trump destroyed or in any way altered the interpreter notes” from previous meetings with Putin prompted Committee Chairman Elijah Cummings to say: “The Presidential Records Act is at the core of the Oversight Committee’s legislative and oversight jurisdiction, and I had hoped that the White House would cooperate voluntarily with this inquiry. Instead, the White House has disregarded these legitimate congressional inquiries and dissembled about basic facts. These actions do not serve the interests of the American people, and they obstruct and frustrate the Committee’s review.”

In May the Archive joined Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR) in filing a Presidential Records Act suit to compel the White House to create and preserve records of the President’s meetings with foreign leaders. The Archive has obtained through the Freedom of Information Act and published thousands of “memoranda of conversation” of heads of state meetings dating back to President Eisenhower, including President Clinton’s 1999 telephone call with Russian President Boris Yeltsin in which Yeltsin announced his successor would be Vladimir Putin.

EPA Wants to Push Through Bad New FOIA Regulations without Public Comment

The Environmental Protection Agency wants to publish new FOIA regulations in the Federal Register – without public comment – under which rules “the administrator and other officials would be allowed 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.” As it stands, the new regulations, which appear to expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allows the agency to functionally ignore any requests sent to regional offices, would go into effect 30 days after the publication in the Federal Register.

Long-time FOIA champion Senator Chuck Grassley wasn’t having it, and 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.”

SCOTUS Ruling Broadens Exemption 4

The Supreme Court has broadened FOIA’s exemption 4, which protects privileged or confidential trade secrets and commercial or financial information, in a 6-3 decision in the case of Food Marketing Institute v. Argus Leader Media.  The case, which was the first the justices heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP).

A possible silver lining is that the case was filed before the FOIA Improvement Act of 2016, which added a foreseeable harm standard that raised the bar for withholding information. MuckRock suggested during the oral arguments in April that, if the justices side with the plaintiff, as they did, that more litigators in the future may turn to enforcing the foreseeable harm standard.

Justice Breyer argued in his dissent, “I fear the majority’s reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”

Senator Chuck Grassley criticized the ruling (and the new EPA FOIA regulations) on the Senate floor, saying “I’m working on legislation to address these developments and to promote access to government records.”

Vigilance Needed to Keep CIA “Covert Agent” Expansion out of House Intel Authorization Act  

Open The Government and the Project on Government Oversight have an excellent write-up on the provision in the pending Senate intelligence authorization bill that would  allow the CIA to indefinitely withhold information on “the identities of all undercover intelligence officers, and United States citizens whose relationship to the United States is classified, regardless of the location of the individuals’ government service or time since separation of government service.” (Current law prohibits the disclosure of the identity of intelligence officers who are currently serving abroad or who have done so within the past 5 years.) Watchdogs will need to be vigilant to ensure the provision isn’t snuck into the House bill in conference.

ICE Detainee Records Update

The National Archives and Records Administration recently announced that Immigration and Customs Enforcement’s controversial proposed records schedule, which would have allowed the agency to designate as temporary (and then destroy) a wide array of sensitive immigrant detainee information, is now back on the Federal Register and the public has an additional 45 days to submit comments.

ICE’s records retention schedule, which all agencies must submit to NARA for approval, sought to destroy records on sexual abuse claims filed by detainees while at ICE facilities and investigative records on detainee deaths. NARA received thousands of comments, as well as letters signed by members of both the Senate and the House, opposing the plan. As a result, Archivist of the United States, David Ferriero, did not approve the records schedule and said in September 2018, “I will not approve the pending ICE schedule until all comments are adjudicated and resolved to my satisfaction.”

NARA notes on its blog that “Because of significant public interest in this schedule, NARA is also posting copies of the revised proposed schedule and the appraisal report on with the notice from the Federal Register. The appraisal report is derived from NARA’s on-site reviews and discussions with ICE officials about agency business processes. Like all agency schedules, this one must be approved by the Archivist of the United States, following completion of the public notice and comment period, before it takes effect.”

FOIA Lawsuit shows repeated NSA “Over-collection”

An ACLU FOIA lawsuit has won the release of documents concerning the National Security Agency’s phone records surveillance program. The documents show that the program “has been marred by more compliance problems than the government has publicly acknowledged.” There were two instances of “over-collection” last year alone, where the agency was forced to purge “millions of Americans’ phone records after learning that some of the data was collected in error.”

The National Security Archive’s Cyber Vault recently published a primer on the phone surveillance program’s legislative origins. While the program is set to expire in December of this year, the Wall Street Journal reported in May that the agency has already formally recommended terminating the program. As the Cyber Vault notes, “The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper’s later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans. Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. ‘The candle is not worth the flame,’ a senior intelligence official told the Journal.”

OIP FOIA Guide Update

The Justice Department recently updated its FOIA guide (thanks to Allan Blutstein for highlighting this on Twitter). The updated sections include the sections on Proactive Disclosures, Exemptions 2, 7, 7(B), 7(D), 7(E), 7(F), 8, and Exclusions. The exclusions come from the 1986 FOIA amendments and concern “three categories of particularly sensitive law enforcement information;” in the section on FBI records, OIP sanctions other agencies adopting the exclusion on “a derivative basis.” Read all of the updates here.

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New Digital National Security Archive Document Collection Covers Nonproliferation Policy from 1954 to 1968

June 24, 2019

The National Security Archive, working with our partners at ProQuest, is publishing a rich new compilation of documents on nuclear nonproliferation policy during the presidencies of Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson. The 2,301-document collection, Nuclear Nonproliferation 2, Part I: From Atoms for Peace to the NPT, 1954-1968, covers an age of growing concern that the spread of nuclear power could lead to a proliferation of weapons capabilities with potentially negative implications for international stability and the U.S. position in world affairs. During this time the U.S. government supported a variety of nonproliferation initiatives, including export controls and international actions ranging from the creation of the International Atomic Energy Agency, test ban treaties, and an international nonproliferation agreement.

The expertly curated document collection covers the creation of the major institutions and agreements that make up the international nonproliferation system, including the International Atomic Energy Agency, the first iteration of the IAEA safeguards system, and the negotiation of the Nonproliferation Treaty. It also details the U.S. government’s concern about emerging nuclear weapons states — the “Nth Country Problem”— and its efforts to monitor nuclear activities in China, France, India, Israel, and elsewhere. Another important topic covered is the diplomatic effort to find a nuclear role within NATO for West Germany to deter possible German interest in an independent weapons capability. Solving that problem was essential for the breakthrough in the NPT negotiations during 1966-1967.

Among the many interest areas covered in this set are:

  • The creation of the International Atomic Energy Agency and the development of Agency safeguards to deter the diversion of nuclear resources into weapons programs;
  • India’s acquisition of a Canadian nuclear reactor whose weak safeguards facilitated the production of plutonium, a development that U.S. government officials closely watched;
  • The U.S. and British discovery of the secret Israeli nuclear reactor project in late 1960, internal U.S. discussions of policy options, continuing debates with the Israeli government over U.S. requests for inspections of the reactor site, and the results of the inspections;
  • Dwight D. Eisenhower’s proposal for a fissile material production cut-off, seen as a method to prevent nuclear proliferation, and supported by successive administrations, although less eagerly later in the 1960s;
  • U.S. government checking of West German nuclear activity and U.S. initiatives to reduce any West German interest in nuclear options and to integrate Bonn more tightly into the NATO system;
  • John F. Kennedy’s initial search for a nuclear nonproliferation agreement, beginning during the 1961 Berlin Crisis, and continuing into 1963;
  • Efforts to control the dissemination of sensitive nuclear technology, including the gas centrifuge, beginning with State Department and other U.S. government attempts to prevent Brazil from purchasing a gas centrifuge from West Germany in 1954 and to establish secrecy for improved gas centrifuges during the 1960s.

Using U.S. government records declassified since the 1990s, this collection picks up from, and expands the coverage provided in, the Archive’s earlier, widely praised ProQuest publication, U.S. Nuclear Nonproliferation Policy, 1945-1991. This collection also complements, and at point exceeds, the State Department’s Foreign Relations of the United States series. The editors of the FRUS have made an extraordinary contribution in producing several volumes on arms control policy, including nonproliferation, during the Eisenhower, Kennedy, and Johnson administrations. Yet, as valuable as those volumes are, because of the complexity of documenting arms control issues in general, involving not only nonproliferation but also test bans, outer space, and strategic missiles, the coverage of the NPT sometimes skims on the surface and important nuances are overlooked.

Of the 2,301 records in this collection, well over 700 documents cover the NPT negotiations, especially the crucial period from August 1966 through January 1968, when the substance of the treaty was settled. The documents on the NPT talks and others in the set were produced by a wide variety of government agencies and offices. Many of them are from the State Department or from the Arms Control and Disarmament Agency (ACDA), created by the Kennedy administration in 1961. The ACDA officials who played a prominent role in the NPT negotiations used State Department telegraphic communications to report on developments. The set also includes White House, CIA, and Pentagon documents.

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