Request for Extension Interior FOIA Rulemaking 14 Jan 2019
A new category has been added to this site—Publications.
The first entry there is “Secrets and Lies — Exposed and Combatted: Warrantless Surveillance Under and Around the Law 2001-2017.” Secrecy and Society 2(1). https://scholarworks.sjsu.edu/secrecyandsociety/vol2/iss1/
This article was written over the period of June 2017 to March 2018. Before June 2013, civil society and much of Congress were largely in the dark about the extent of the surveillance activities of the National Security Agency and the circumlocutions of statute undertaken by the White House and the Department of Justice. After the releases by Edward Snowden to specific journalists, the mendacity of Intelligence Community lawyers and leaders, the evasions of the law and manipulation of the FISA Court by the White House working with the Justice Department, and the scope of the violations of the Fourth Amendment protections of U.S. Persons (USPs) became increasingly apparent.
In order to understand the context for the “Snowden disclosures” and what they have meant for Executive Branch accountability, it is necessary to understand the course of efforts to rein in – or at least secure some (often minimal) oversight of – the U.S. Intelligence Community. These initiatives include the Foreign Intelligence Surveillance Act (FISA) and the amendments thereto, including, for the purposes of this article, the USA PATRIOT Act, the USA Freedom Act, and the FISA Amendments Act (FAA) and its reauthorizations. The article reviews the changes that were initiated in the Executive Branch (and to a lesser extent in the Legislative Branch), the role civil society played in pushing and utilizing greater transparency, and what the changes mean for government accountability to the public.
As news articles appear about the ongoing activities of the Intelligence Community in the areas covered in this article, they will be noted here. It is strongly advised that one read “Secret and Lies” before taking any government statements at face value–or thinking the words necessarily mean what they appear to mean.
UPDATE — We have heard about conversations with folks who use Google at their agencies. The general consensus seems to be that the new features are in conflict with records management laws and those need to be resolved before any potential implementation of these features, and it’s highly unlikely that they can be incorporated due to that. It also sounds like there’s not a large user demand for these features (probably due to complacency and comfort with the existing set up).
On April 25, Google announced the introduction of a new approach to information protection: Gmail confidential mode.
“With confidential mode, it’s possible to protect sensitive content in your emails by
- creating expiration dates or
- revoking previously sent messages
- requiring additional authentication via text message to view an email.”
But, wait, there’s more…
“Built-in Information Rights Management (IRM) controls also allow you to remove the option to
- download or
- print messages.
This helps reduce the risk of confidential information being accidentally shared with the wrong people.”
What could possibly go wrong when government employees, lobbyists, and even nefarious folks are allowed to use these options (which may be all on or all off)?
American Oversight has already sent a letter to the National Archives and Records Administration (NARA) calling for government-wide guidance to prevent officials and employees from using Gmail’s new “self-destructing” and “revoking” email feature. As they note, the feature could allow government employees to delete agency records subject to the Freedom of Information Act (FOIA). That feature would also be a violation of the Federal Records Act.
Of equal, if not greater, concern are the other features. Government Information Watch is working with current and former government employees to identify the bars to the use of these “information rights” features (including requiring authentication to view messages) by officials and employees.
Their implementation could have deleterious effects on whistleblowers, journalists, and the ability to use information received through FOIA releases.
Stay tuned. We will be updating you as we go forward.
I am more and more reminded of the Bush-Cheney Administration. Not only are the (literal) war-horses being recycled, but the enormous disdain of Congress and the refusal of any accountability to the public are painfully familiar to any of us who endured that period.
To wit, the White House is stonewalling the Government Accountability Office, according to a May 30 report in Government Executive. Not to give the current White House any ideas, but this is a mere sfumatura (as Italians would say) of the confrontation that Cheney created. The following is excerpted from my 2007 book, Who Needs to Know?
On April 19, 2001, Representatives Dingell and Waxman launched joint requests to both the Vice President and the General Accounting Office concerning the Vice President’s Energy Task Force, its members, and its proceedings.
In response to the request by Representatives Dingell and Waxman, the General Accounting Office (GAO) issued the first demand letter ever to a sitting Vice President. GAO considered its statutory authority to be clear.
Counsel to the Vice President David Addington responded to the Congressional request, explaining that the Energy Group was not subject to the Federal Advisory Committee Act. As a matter of comity, though, he would provide some answers about the Energy Group’s members, staff and activities. Addington declared that GAO was seeking “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.” GAO argued that even assuming this claim was accurate, it still had the authority to make the requests it had made.
On Sept. 27, for the first time in the 81‑year history of the agency, the comptroller general of the United States went to Federal court today to ask a judge to order a member of the executive branch to turn over records to Congress.
It was clear, even this early in this administration, that executive privilege was an issue of central importance to the Administration. As John Dean—who, as counsel to former President Nixon might be considered to know something about the abuse of power—writes, “not since Richard Nixon stiffed the Congress during Watergate has a White House so openly, and arrogantly, defied Congress’s investigative authority. … Cheney has not claimed “Executive Privilege,” for the Vice President has no such power. Rather, Cheney has claimed ‑ and Bush has backed up his claim ‑ that GAO (and therefore the Congress, too) has no authority to seek the information they have requested.”
Dean also noted “the special attention” given this case:
In fact, it is unique in the history of the Department of Justice. Normally, this case would have been handled by the Civil Division of the Justice Department. But this case is one of a select few being handled by a newly created special unit under the direction of Deputy Solicitor General Paul Clement. …Not only is this nameless ad hoc group representing Vice President Cheney, but no less than the Solicitor General himself, Theodore Olson, was seated at the trial table in the Judge Bates’s courtroom during the recent augment. Typically, the Solicitor General only appears before the U.S. Supreme Court. For the SG to appear in the U.S. District Court was clearly designed to send a message to the Judge of the unusual importance the Bush‑Cheney Administration has given this case ‑‑ not to mention to prepare the SG for later arguing the case before higher courts.”
On December 9, 2002, U.S District Judge John Bates, a Bush appointee and former Kenneth Starr deputy, ruled against GAO (Walker v. Cheney). The opinion reads:
“The parties agree that no court has ever before granted what the Comptroller General seeks – an order that the President (or Vice-President) must produce information to Congress (or the Comptroller General). Because the Comptroller General does not have the personal, concrete, and particularized injury required under Article III standing doctrine, either himself or as the agent of Congress, his complaint must be dismissed. Historically, the Article III courts have not stepped in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.
This decision, in essence, secures the Bush Administration’s position that it has the right to withhold from the public–and Congress–any and all details of its policy-development meetings with non-governmental people. It also chills any attempt by Congress to use the GAO to monitor the executive branch.
We are not yet there, but not for the lack of trying by the Trump administration.
 John W. Dean. “GAO v. Cheney Is Big‑time Stalling: The Vice President Can Win Only If We Have Another Bush v. Gore ‑like Ruling .” FindLaw, Friday, Feb. 01, 2002. http://writ.news.findlaw.com/dean/20020201.html
 John W. Dean. “The Ongoing Fight Between the Supreme Court And Congress, as Illustrated by the GAO/Cheney Suit: Part Two Of A Series On Shrinking Congressional Powers.” FindLaw, Friday, October 25, 2002. http://writ.news.findlaw.com/dean/20021025.html
 Memorandum Opinion and Order. Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002)
UPDATE–The Southern Environmental Law Center is suing the Office of Management and Budget for failing to release information about efforts to fundamentally reorganize federal agencies responsible for managing federal public lands, including the United States Forest Service, the National Park Service, the Bureau of Land Management and the United States Fish and Wildlife Service. SELC filed a request for information related to these reports in November 2017. After initially acknowledging SELC’s request, OMB has failed to provide the requested information or respond to inquiries pertaining to the request. Today’s suit challenging OMB was filed in U.S. District Court for the Western District of Virginia.
In January, I wrote about Government Reorganization in the dark and recounted the efforts of PEER and Government Executive to find the website that OMB purports to have set up to receive public comments, the 100,000 it alleges it received, and any information about the OMB’s plans for the agencies. The purported website previously at least took one to the bare bones OMB site; now it takes you on a wild goose chase.
That page cannot be found, or is located on an archived web page.
On 2 May, Government Executive reported on the continuing saga.
…Agencies turned over initial versions of their plans to OMB in June of last year and final drafts in September. Lawmakers have not yet viewed the proposals and said they do not know if agencies met their deadlines.
The administration initially said the plans would be made fully available in Trump’s fiscal 2019 budget, though only a handful of agencies offered details in that document. Mulvaney recently told a congressional committee the White House would unveil the complete agency reform plans later this month.
As Gov Exec notes, however, Congress felt the need to mandate consultation on any consolidation or cutting of workforces:
Congress included several provisions in a recently passed governmentwide spending bill to ensure the Trump administration consults with lawmakers before consolidating offices or shedding workers. Several agencies have already risked running afoul of those provisions.
“The fact that the Republican-controlled Congress had to pass legislation to require the Trump administration to show us their secret reorganization plans is indicative of just how extensive the administration’s obstruction of congressional oversight has become,” Cummings said after the omnibus was enacted.
In a Just Security post today, Patrick Eddington provides a detailed history of John Bolton’s various stints in the Executive Branch—and his attitudes about the use of information to advance his agenda. As Eddington notes
Bolton rose to prominence in the Bush (43) administration’s first term as the Undersecretary of State for Arms Control and International Security Affairs, where he frequently clashed not only with his Bush administration colleagues but with career government servants at the State Department and the U.S. Intelligence Community. And it was those confrontations, along with credible allegations of abuse of surveillance powers [apparent attempts to obtain information on the identities of other American officials picked up in conversations by NSA] and [of] Intelligence Community analysts, that ultimately led to Bolton’s exit from the administration. [Emphasis added]
Now, Trump is putting Bolton in as the National Security Advisor, where he will not only see but be able to rouse the President to attack enemies “at home and abroad,” with
..unprecedented access to intelligence collection and surveillance authorities that routinely gobble up trillions of digital communications, including a vast (but currently undisclosed) number of text messages, emails, etc., belonging to Americans.
Bolton will also have access to FBI investigative information and capabilities, and be in a position to pressure the bureau or other federal agencies to investigate Americans in contact with foreign governments, nongovernmental organizations, foreign journalists, and more.
The problem for accountability is that
Because Bolton will be an appointee on President Trump’s staff, direct Congressional access to his communications with federal departments and agencies will likely be nonexistent, absent leaks to the media. Accordingly, the only chance of surfacing politically or legally dubious actions by Bolton or those working on his behalf will come from aggressive Congressional oversight of those same executive branch entities for any directives, taskings, or other orders that he hands down. [Emphasis added]
Eddington, a former Senior Policy Advisor to Rep. Rush Holt, identifies the tools available to the House and Senate to get information on Bolton’s activities from executive branch agencies—including Resolutions of Inquiry, appropriations riders, subpoenas, or holds on other executive branch nominations.
To be effective, such oversight must have “at least a modicum of bipartisan cooperation.” And, in the current Congress, there’s the rub.
And, failing meaningful congressional oversight—and/or consequential internal executive branch disclosures and whistleblowing—the public will be completely in the dark.
In a post today on Lawfare, A Hard Transparency Choice: What is WikiLeaks?, Carrie Cordero raises important questions about the approach of the US government to Wikileaks. Cordero points to the specific links that the Intelligence Community has drawn between the Russian government and Wikileaks, which are telling in themselves. However, she notes that IC officials have openly and publicly “called out” Wikileaks as “a non state, hostile intelligence service often abetted by state actors, like Russia.”
As further revelations have been made about contacts between Julian Assange and individuals (such as Roger Stone) affiliated with the Trump campaign regarding the hacked Clinton campaign-related emails, the basis for the IC assessment of Wikileaks role remains largely hidden. As Cordero notes, the U.S. government has not ever confirmed publicly whether it has an open counterintelligence investigation of WikiLeaks, although the Washington Post reported last spring that “the FBI has spent years investigating WikiLeaks…” and continued to do so in the context of the exfiltration of sensitive CIA hacking tools. Cordero points out that
As a result, the U.S. intelligence community has made specific statements about WikiLeaks—without really saying what it is, who funds it, who controls it and how it obtains information it releases. This makes it difficult for the public to accurately understand how to interpret WikiLeaks’ activities and releases. The current approach also makes it difficult for consumers of information released by WikiLeaks, including but not limited to professional journalists, to understand whether they are reviewing information that has been released as a public service, or as an orchestrated effort intended to manipulate, which activities may be supported, conducted or encouraged by a foreign intelligence service.
If we assume that WikiLeaks is subject to a longstanding investigation, and that there is a possibility that it or its officials have exposure to criminal charges, it may be that the FBI, Justice Department, special counsel, or all three would strongly oppose any further public disclosure by the intelligence community regarding what WikiLeaks is or how it operates. Yet, if WikiLeaks is, as director Pompeo has said, a “nonstate, hostile intelligence service often abetted by state actors, like Russia,” then there is a competing interest favoring a release of meaningful information that supports the assessment, by the intelligence community through appropriate transparency processes that have been developed in recent years. If such a public disclosure can be made, consistent with the need to protect classified information and accommodating ongoing investigative prerogatives, this seems like the right time to make it.
Government Information Watch today joined 29 other civil society organizations in a letter to Senators expressing grave concerns regarding the nomination of Gina Haspel for Director of the Central Intelligence Agency (CIA), and asking that her nomination not be advanced until all of the records on her past involvement in the CIA torture program are declassified and released to the public.
The letter notes that
“[t]he Senate’s constitutional obligation to “advise and consent” on any nomination requires that it have full access to relevant information on the nominees before it. In Ms. Haspel’s case, the precise details of her role in the torture program remain classified. All senators should demand that those records be declassified and made public—before her nomination moves any further—so that they can actually discuss Ms. Haspel’s deeply disturbing background in open session, and so that the public can glean a more detailed picture of her role in one of the darkest chapters in U.S. history.
Ms. Haspel was a central figure in the torture program and the destruction of evidence of torture. Based on already available records and public reporting, it is clear by her wrongdoing that she demonstrated disregard for the rule of law and fundamental human rights.”
The letter is here : https://govinfowatch.net/wp-content/uploads/2018/03/Haspel-coalition-letter-3-16.pdf
According to several stories in Defense One, communications with the public and the press are being actively discouraged. A March 13 story notes:
The U.S. Air Force is slashing access to media embeds, base visits and interviews as it seeks to put the entire public affairs apparatus through retraining — a move it says is necessary for operational security, but one which could lead to a broader freeze in how the service interacts with the public.
According to March 1 guidance obtained by Defense News, public affairs officials and commanders down to the wing level must go through new training on how to avoid divulging sensitive information before being allowed to interact with the press.
Before settling on retraining its public affairs corps and commanders, the service considered an even more drastic step: shutting down all engagement with the press for a 120-day period, a source with knowledge of the discussions said.
The guidance, which was marked as “for official use only,” was distributed to public affairs officials following a February 2018 memo on operational security signed by Air Force Secretary Heather Wilson and Chief of Staff Gen. Dave Goldfein. The story indicates that the guidance reflects a renewed focus on operational security that stems from the Trump administration’s recently released National Defense Strategy.
The seven-page guidance states:
In line with the new National Defense Strategy, the Air Force must hone its culture of engagement to include a heightened focus on practicing sound operational security. As we engage the public, we must avoid giving insights to our adversaries which could erode our military advantage. We must now adapt to the reemergence of great power competition and the reality that our adversaries are learning from what we say in public.
As Steve Aftergood notes, the new Air Force guidance does not distinguish between classified and unclassified information. Nor does it define the scope of “sensitive operational information” which must be protected.
Secrecy News also notes, moreover, that “As it happens, a counter-argument in favor of enhanced Air Force release of information was made just last week by Air Force Secretary Heather Wilson.” The Public Affairs Management, Air Force Policy Directive 35-1, March 8, 2018, which notes in bold “COMPLIANCE WITH THIS PUBLICATION IS MANDATORY, states:
1. Overview. The Air Force has an obligation to communicate with the American public, including Airmen and families, and it is in the national interest to communicate with the international public. Through the responsive release of accurate information and imagery to domestic and international audiences, public affairs puts operational actions in context, informs perceptions about Air Force operations, helps undermine adversarial propaganda efforts and contributes to the achievement of national, strategic and operational objectives. This directive establishes the framework for Air Force public affairs operations.
2. Policy. The Air Force shall conduct comprehensive, active communication programs at all levels of command—in garrison and while deployed—to provide Airmen and their families, Congress and the American public timely, factual and accurate Department of Defense and Air Force information that contributes to awareness and understanding of the Air Force mission.
2.1. The Air Force shall respond to requests for releasable information and material. To maintain the service’s credibility, commanders shall ensure a timely and responsive flow of such information.
2.1.1. The Secretary of the Air Force authorizes delegating the review of information proposed for public release to the lowest level competent to evaluate the content. Generally, reviewers shall assess the potential implications of releasing the information, ensuring it is not classified, does not disclose operationally sensitive elements, and does not conflict with established government policies or programs.
2.1.2. Public affairs programs shall not practice propaganda, disinformation or activities intended to bias, mislead, misinform or deny otherwise releasable information.
2.2. The Air Force shall develop and maintain cooperative and responsive relations with the public and media. Public affairs activities will support leaders at all levels in fostering public trust and support through active community outreach.
2.3. The Air Force shall collect, preserve and accession visual information products to meet operational, informational, training, research, legal, historical and administrative needs.
2.4. The Air Force shall organize, train and equip its bands to conduct appropriate engagements to foster sustained public trust and support, sustain warfighter morale, build partnerships, foster national pride, patriotism and service and recruit talented Airmen.
“comes back to age-old issues around declassification authority and third-agency referrals. … And, bringing them here makes it much easier to address long-standing challenges such as certain topics that cut across more than one Administration.”
Washington, D.C., February 21, 2006 – The CIA and other federal agencies have secretly reclassified over 55,000 pages of records taken from the open shelves at the National Archives and Records Administration (NARA), according to a report published today on the World Wide Web by the National Security Archive at George Washington University. Matthew Aid, author of the report and a visiting fellow at the Archive, discovered this secret program through his wide-ranging research in intelligence, military, and diplomatic records at NARA and found that the CIA and military agencies have reviewed millions of pages at an unknown cost to taxpayers in order to sequester documents from collections that had been open for years.
At issue then, and a possibility now, is that the IC agencies assert ‘equities’ in records not created by them.
An “equity” is information that was originated, classified by, or concerns the activities of another government agency or organization and only they can declassify it. Records that contain other agency “equities” must be referred to those agencies for declassification review.
A referred record becomes declassified upon final declassification action by the referring agency based upon the results of the other agency reviews, or automatically without benefit of additional review if not acted upon by those agencies within a specific time frame and after appropriate referral notification.
President Obama’s 2009 Executive Order 13526 created a National Declassification Center (NDC) at NARA and specifies that ‘If an agency fails to provide a final determination on a referral made by the Center within 1 year of referral, or by the centralized facilities referred to in section 3.7(e) of this order within 3 years of referral, its equities in the referred records shall be automatically declassified.”
It is potentially worrisome that the letter from Mr. Bosanko does not directly address the role to be played by the NDC and its responsibility for reigning in the endless foot-dragging on referrals undertaken by IC agencies.