FOIA Ombudsman’s Departure Worrisome, Archivist Will Not Call Torture Report a Federal Record, and More: FRINFORMSUM 5/12/2016

Freedom of Information Act (FOIA) Advisory Committee. From left to right: James Holzer, Mark Zaid, Ginger McCall (forner member), Brent Evitt, Larry Gottesman, Melanie Pustay, Nate Jones, David Ferriero, Lee White, Sean Moulton, Marty Michalosky, Jim Hogan, David Pritzker, Clay Johnson.

The head of the Office of Government Information Services (OGIS), Jim Holzer, is stepping down after less than a year on the job – and only two months after telling attendees of the Newseum’s National Freedom of Information Day celebration that OGIS was “in its best position yet to act as a change agent in FOIA, thanks to [its] robust mediation and compliance programs.” Holzer has led the small federal FOIA ombuds in mediating requester/agency disputes and monitoring agency FOIA compliance since August 2015. The sudden departure is worrisome, in no small part because it took nine months to confirm that Holzer would replace his predecessor, Miriam Nisbet. If, as it appears will happen, the key FOIA compliance position remains vacant when President Obama leaves office, it will be another significant blight on his administration’s transparency record.

OGIS is tasked with the large – and sometimes unenviable – job of improving the FOIA process across the federal government, and its staff of eight people (not including the director and a currently vacant position on the mediation team) is woefully understaffed. It is also hamstrung by bureaucratic requirements forcing OGIS to send proposed recommendations for policy changes through the intra- and inter-agency review process –allowing agencies that would be subject to OGIS’s recommended policy changes to review them before OGIS can go forward. As Miriam Nisbet testified before the House Oversight and Government Reform Committee in February 2015, “If you do want recommendations, reports and testimony that have not had to be reviewed, changed and approved by the very agencies that might be affected, then you should change the statute. Such a change also would accord with the long-established ombudsman model that is followed in the US and in other countries, independence being one of the criteria.”

Both FOIA reform bills in the House and the Senate, however, would grant OGIS more independence by giving it the ability to communicate directly with Congress and issue advisory opinions in mediation. Holzer’s departure begs the question of whether he was skeptical of the potential success of FOIA reform, or if the language in the bills – even if they are successful – does not go far enough. If the latter is true, it raises the troubling question of whether or not OGIS advocated strongly enough for its own independence with the Senate Judiciary Committee and the House Oversight and Government Reform Committee – both groups that would likely have taken requests from OGIS for more autonomy seriously.

Holzer will be returning to the Department of Homeland Security’s FOIA office, which receives the largest number of FOIA requests annually and whose staff will be statutorily required to listen to his good FOIA guidance, unlike agencies that currently can choose to disregard OGIS’s opinions.

Cover page of the executive summary of the Senate report on the CIA’s torture program. The fate of the full report remains in danger.

The Archivist of the United States, David Ferriero, denied a formal request from the National Security Archive and others to call the Senate Intelligence Committee’s report on the CIA torture program what it is – a federal record. The denial came a week after The Constitution Project’s Katherine Hawkins sent Ferriero a letter, which was signed by the Archive and 30 other groups, requesting that he do precisely the opposite. Weeks before, Democratic Sens. Patrick Leahy of Vermont and Dianne Feinstein of California sent a similar letter to the Archivist, citing NARA’s responsibility “to advise other parts of the United States government of their legal duty to preserve documents like the Senate Report under the Federal Records Act, the Presidential Records Act, and other statutes.”

Ferriero was “unmoved,” saying that he would not declare the report a federal record because doing so would interfere with an ongoing Freedom of Information Act case brought by the ACLU.  The Archivist appears to be acting on behalf of the DOJ, which earlier insisted that Ferriero make no determination on the report while the FOIA suit plays out in court – despite his statutory authority to do so.

This unwillingness to stand up to the DOJ, which insists on defending bad agency FOIA stances as a matter of routine, endangers the public’s ability to ever read the report. As I have argued before, “it looks as though the NARA is content to abdicate its responsibility to preserve and maintain federal records and its statutory independence for the sake of placating the DOJ and allow the report to slip into obscurity.”

(It’s worth noting that not everyone believes this is a threat to the ultimate preservation of the report; Steve Aftergood, for example, says that he would be astonished if the report “were not preserved for posterity one way or another, and eventually published… If it became possible to erase it from the historical record in some kind of Stalinesque act of suppression, then we would all have bigger problems to worry about.”)

Senator Feinstein initiated the torture report after learning that Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program, authorized the destruction of 92 video recordings of suspected Al-Qaeda leader Zain Abidin Mohammed Husain Abu Zubaydah being waterboarded 83 times in one month at a black site prison in 2005. It is a sad irony that at the same time the report’s preservation remains unsecured, that evidence in ongoing Guantanamo 9/11 trials is being destroyed.

Defense lawyers for alleged 9/11 mastermind Khalid Sheik Mohammed have submitted court filings accusing the federal judge overseeing the death penalty case and prosecuting attorneys of secretly destroying evidence that would be “favorable” to Mohammed and other defendants. Specifically, defense lawyers are “asking for the judge overseeing the case, Col. James Pohl of the Army, and the prosecution team, led by Brig. Gen. Mark S. Martins, to be recused from further involvement, and for the case to be shut down.” The classified nature of the evidence involved prevents the defense from explaining what the evidence was, but media outlets indicate it may center on the CIA’s “black site” prisons, “which were reportedly in Thailand, Poland, Romania, Lithuania and Afghanistan, and at a secret site at the Guantánamo base.” Pohl issued a public order in late 2013 granting the defense’s request to preserve evidence of overseas detention facilities; defense lawyers learned in February of this year, however, that months after Pohl’s 2013 order, “prosecutors had obtained from Colonel Pohl a secret order that reversed his previous decision. By the time they found out, the government had already destroyed the evidence, giving them no opportunity to challenge the move.”

The Government also inadvertently emailed classified information to Guantanamo detainee defense lawyers during the discovery process in February, a mistake caused in part because the exhibits “had not been marked as such at the time the Government turned them over.” Politico’s Josh Gerstein reports that the classified material made “its way onto computers used by defense lawyers, prosecutors, and the military judge, according to a recently-released court filing.” The mistake was exposed in a court submission from defense lawyers that complained of the excessive secrecy in the case, limiting the defense’s options.

Vice News’s Jason Leopold recently won the release of a February 2012 ten-page Defense Department IG report through the FOIA that shows that the DOD had no policies in place that “specifically addressed how detainees will be treated once transferred to another country.” Two years after the IG report, the DOD did adopt policies “barring the transfer of detainees to foreign countries if US authorities determined ‘that it is more likely than not that the detainee would be subjected to torture.’” The 2012 IG report also disclosed for the first time the number of detainees held in Afghanistan (802) and Iraq (259) between August 2010 and August 2011.

One of the FOIA-released photos shows the president being “consoled by Lt. Col. Cindy Wright of the White House Military Office aboard Air Force One. After leaving Louisiana, the president was flown to Offutt Air Force Base in Nebraska before he headed back to Washington D.C.”

Photographs taken by President George W. Bush’s personal photographer on 9/11 – released thanks to a FOIA request filed by Colette Neirouz Hanna and Frontline with the George W. Bush Presidential Library – show Bush’s response to the attacks. The batch of photographs is the third released to Hanna and her team; the previous two photo sets were released by NARA. “One batch, released by the National Archives in July 2015, contained more than 350 behind-the-scenes images of 9/11 by Vice President Dick Cheney’s personal photographer. A set of 2,664 images released one month earlier provided a rare glimpse of Cheney’s tenure in office.”

There’s no rule against nuclear weapons in space provided they don’t enter into an earth orbit or explode. This fact is found in the “Space Law” section of an unclassified 1999 DOD General Counsel assessment on international legal issues — obtained through the FOIA and recently posted to the National Security Archive’s Cyber Vault. In discussing the Outer Space Treaty (OST), the assessment summarizes that the OST “permits placing in orbit weapons other than nuclear weapons and other weapons of mass destruction. Also, the treaty contains no prohibition against nuclear weapons transiting outer space, as long as they do not enter into an earth orbit and they do not explode in outer space.”

The National Security Agency promised it would work towards its goal of “owning the net” in its Presidential Transition 2009. In addition to the eyebrow-raising passage on “owning the net” (PDF page 69), the document – also recently posted to the National Security Archive’s Cyber Vault — includes sections on discovering vulnerabilities in information systems (PDF pages 38-39) and protecting privacy rights (PDF pages 48-51).

The Archive’s Cyber Vault is updated every Wednesday.

Alex Wellerstein, the creator of NUKEMAP, recently captured the results of Future of Life Institute’s interactive map of the nuclear targets listed for potential destruction in the Strategic Air Command’s nuclear weapons requirements study for 1959, which was released to the National Security Archive through the Mandatory Declassification Review process. Wellerstein ran a series of studies on the data, concluding that, in addition to the declassification of the list being remarkable, the “1956 target list is pretty nuts, especially given the high-yield characteristics of the US nuclear stockpile in 1956. This strikes me as going a bit beyond mere deterrence, the consequence of letting military planners have just a little bit too much freedom in determining what absolutely had to have a nuclear weapon placed on it.”

The Office of the Director of National Intelligence recently posted ten documents requested under the FOIA to its Tumblr, IC on the Record. Kudos to ODNI for continuing to proactively post FOIA-requested records for all to read. One of the documents posted is the Federal Intelligence Coordination Office Phonebook 2013 and 2014. IC orientation briefing, “Unlocking the Secrets: How to Use the IC;” another is the 2011 National Intelligence Council Annual Report to Congress on the Safety and Security of Russian Nuclear Facilities and Military Forces.

The CIA’s declassified map of Groom Lake/Area 51.

Hillary Clinton said that if elected president she would, barring threats to national security, make files on the Nevada Air Force base – Area 51 – and unexplained aerial phenomenon (UAP) public. The position may reflect a sign that she’s learned a transparency lesson in the wake of her email scandal; she is the only candidate to release years’ worth of tax returns, and Ben Geman recently wrote in the National Journal that Clinton’s “vulnerability to charges of excessive secrecy could spill over into federal policy by providing momentum to open-government advocates pushing for reforms.” The Archive’s Nate Jones concurred, saying Clinton’s “transparency record is so poor that she can’t afford not to establish strong pro-FOIA, pro-openness policies.”

Clinton’s stance may also be political savvy, since opening up Area 51 and UAP files would make headlines, mobilize an impassioned group of voters, and distract from said email scandal.

The promise may also reflect the special interest in the subject by her campaign chairman, John Podesta,  who famously called for the declassification of all documents on aliens. Podesta was behind many of the Clinton administration’s important declassification decisions when he was Chief of Staff, including playing a role in E.O. 12958 that requires the declassification of most government documents over 25 years old. Unfortunately for many, Podesta tweeted that his “biggest failure of 2014: Once again not securing the #disclosure of the UFO files.”

This week’s #tbt pick is chosen with Clinton’s recent promise in mind, and is the Archive’s “Area 51 File,” a collection of declassified documents on the Nevada base including the first official acknowledgement of Area 51, which is contained in a CIA history of the U-2 spy plane.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!