CIA Asserts State Secrets Privilege in Torture Case

The Central Intelligence Agency formally asserted the state secrets privilege this week in order to prevent disclosure of seven categories of information concerning its post-9/11 interrogation program, and to prevent the deposition of three CIA officers concerning the program.

The move was first reported in the New York Times (“State Secrets Privilege Invoked to Block Testimony in C.I.A. Torture Case” by James Risen, Sheri Fink and Charlie Savage, March 8).

“Over time, certain information about the [CIA interrogation] program has been officially declassified and publicly released,” acknowledged CIA director Michael Pompeo, in a March 2 declaration explaining the CIA’s justification for asserting the state secrets privilege. “For example, the enhanced interrogation techniques employed with respect to specific detainees in the program, and their conditions of confinement, are no longer classified.”

“Nonetheless, many details surrounding the program remain highly classified due to the damage to national security that reasonably could be expected to result from disclosure of that information. For this reason, the CIA has withheld or objected to the disclosure of certain information implicated in discovery in this case,” he wrote.

“The Government has undertaken significant, good faith efforts to produce as much unclassified discovery as possible,” the Justice Department said in its March 8 motion. But “The Government has satisfied the procedural requirements for invoking the state secrets privilege.”

The government said that it had followed the guidance issued by Attorney General Eric Holder in 2009 that was intended to increase internal oversight of state secrets claims by elevating them to the attention of the Attorney General, among other steps.

“These standards and procedures were followed in this case, including personal consideration of the matter by the Attorney General and authorization by him to defend the assertion of the privilege,” Justice attorneys wrote.

The state secrets privilege has often been used in the past to terminate litigation altogether by barring introduction of essential evidence. But not in this case.

“The Government is not seeking dismissal here,” the Justice Department motion said. So even if the state secret privilege claims are granted by the court, as seems likely, the lawsuit could still move forward.

“We think [the] case can proceed on [the] public record,” tweeted attorney Hina Shamsi of the ACLU, which represents the plaintiffs in the case against two CIA psychologists.

FOIA Exemption for CIA “Operational Files” at Issue

Last March, the conservative watchdog group Judicial Watch filed a Freedom of Information Act lawsuit against the Central Intelligence Agency seeking a copy of “all pornographic material” collected during the May 2011 military operation that killed Osama bin Laden.

In opposition, CIA argued that “responsive records, if any, would be contained in operational files,” and that “the CIA Information Act exempts the CIA’s operational files from FOIA’s search and disclosure requirements.”

There is indeed an exemption from FOIA for CIA operational files, but the scope and the proper application of the exemption are in dispute. If the requested pornographic records do qualify for the “operational files” designation, as CIA holds, then they do not need to be assembled, reviewed or released in response to Judicial Watch’s request.

But whether they do so qualify is not a perfectly simple question, since the operational files exemption has various technical limitations and exceptions.

Judicial Watch said the bin Laden pornography falls within the “special activity” exception to the operational files exemption. “The ‘special activity’ exception applies to records concerning a specific covert action that has been publicly disclosed or acknowledged,” wrote attorney Michael Bekesha of Judicial Watch.

As evidence that the bin Laden raid was in fact a covert action that has been publicly disclosed, Judicial Watch cited a quotation from then-CIA Director Leon Panetta, who described it on the PBS Newshour, saying that “this was what’s called a ‘title 50’ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way.”

Remarkably, however, CIA insisted that Panetta “did not acknowledge that the operation was conducted under covert action authorities.”

“The term ‘covert operation’ [used by Panetta] is not synonymous with a ‘covert action,’ nor is Mr. Panetta’s description of the raid as ‘covert’ an acknowledgement of a ‘covert action’,” said CIA’s Antoinette B. Shiner in a declaration last month.

Judicial Watch moved to strike that CIA declaration as improper, particularly since it was not based on personal knowledge of Panetta’s intent.

That particular issue, and the case as a whole, now await resolution by Judge Ketanji Brown Jackson of the DC District Court.

In an aside, attorneys for CIA questioned the plaintiff’s motivation for filing the lawsuit. “It is hard to imagine how dissemination of pornographic materials allegedly seized during the Bin Laden raid could inform the public in any meaningful way about what the United States government is up to — the core, animating purpose of FOIA — much less advance Judicial Watch’s professed mission ‘to promote transparency, accountability, and integrity in government and fidelity to the rule of law’.”

But the Freedom of Information Act does not require that requesters be motivated by some constructive purpose. Under FOIA, any person may request any government record for any reason, or for no reason at all. The bar to entry and the costs of participation are practically non-existent.

For its part, Judicial Watch defended its approach. “We’re filling multiple roles here in a Washington where the traditional vehicles for government accountability have broken down,” said Tom Fitton, president of the organization, in a recent profile in the New York Times. (“Group’s Tactic on Hillary Clinton: Sue Her Again and Again” by Jonathan Mahler, October 12.)

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Last week, the Central Intelligence Agency released the conclusions of its 2015 “decennial review” of operational file designations, as required by the CIA Information Act of 1984. The exercise is supposed to refine and revalidate the use of the operational files category as an exemption from FOIA.

But although CIA went through the motions of requesting public comments on the matter last year, the Agency did not directly respond to any of those comments in its April 2016 report to Congress. For the most part, the results of the third decennial review track closely with those of the second decennial review in 2005. The new report does not explicitly reference Clandestine Service History Program Files, however, among a few other changes in wording. The significance of that is unclear.

The latest review did not identify any categories of records that were to be removed from the operational files category, as was done in report on the first decennial review in 1995.

CIA Releases Draft History of Bay of Pigs

The Central Intelligence Agency yesterday released a long-sought draft of the fifth volume of its internal history of the 1961 invasion of the Bay of Pigs.

The release was among the first tangible results of this year’s amendments to the Freedom of Information Act, which imposed a 25 year limit on the exemption for “deliberative” files. As a result, the 1984 draft history could no longer be legally withheld.

CIA said in a cover note that “This fifth draft volume was not publishable in its present form, in the judgment of CIA Chief Historians as well as other reviewers, because of serious shortcomings in scholarship, its polemical tone, and its failure to add significantly to an understanding of the controversy over the Bay of Pigs operation.”

Indeed, the new “volume is strange, in some respects, and interesting,” said Villanova Prof. David M. Barrett, who had filed a lawsuit last summer for release of the draft history.

“Essentially, it is a critical history of the Inspector General’s critical report on Bay of Pigs, which mainly blamed CIA incompetence for the failure at Bay of Pigs.  [The author, CIA historian Jack] Pfeiffer says IG Lyman Kirkpatrick’s report was, itself, biased and incompetent.  Pfeiffer says the most obvious cause of failure at Bay of Pigs was JFK’s decision to cancel a planned 2nd airstrike in support of the invaders at Bay of Pigs,” Barrett said.

He noted several highlights:

Author Pfeiffer describes one of the IG report’s authors as probably mentally ill (p. 75).  Writing in about 1983, Pfeiffer says that CIA had kept the IG report and other internal analyses of Bay of Pigs classified Secret in order to avoid airing its “dirty laundry.” (p. 4).

Pfeiffer says CIA hired a couple of people to write the true story of Bay of Pigs with the hope of having Life Magazine or another outlet publish it.  Only State Dept objections stopped that from being pursued, though the authors did write the article. (p. 87-90)

At the end, Pfeiffer suggests in a footnote that the history program (where he worked!) should probably be abolished, and the raw materials it possessed should be destroyed; the Operations Directorate was hostile to it, and it was hard to see the point of the program. (p. 146) [Correction: The views expressed in the footnote on page 146 are those of other CIA officials, not Pfeiffer’s.]

“Not quite earth-shaking history, but I think the real story is that CIA spent much effort and money over the past 5 years to prevent [release] of this document,” Barrett said.

The National Security Archive, which had previously filed suit to obtain the document, hailed its release here.

CIA Will Place Its CREST Database Online

The Central Intelligence Agency said this week that it will post its database of declassified CIA documents online, making them broadly accessible to all interested users.

The database, known as CREST (for CIA Records Search Tool), contains more than 11 million pages of historical Agency records that have already been declassified and approved for public release.

Currently, however, CREST can only be accessed through computer terminals at the National Archives in College Park, MD. This geographic restriction on availability has been a source of frustration and bafflement to researchers ever since the digital collection was established in 2000. (See CIA’s CREST Leaves Cavity in Public Domain, Secrecy News, April 6, 2009; Inside the CIA’s (Sort of) Secret Document Stash, Mother Jones, April 3, 2009).

But that is finally going to change.

The entire contents of the CREST system will be transferred to the CIA website, said CIA spokesperson Ryan Trapani on Tuesday.

“When loaded on the website they will be full-text searchable and have the same features currently available on the CREST system at NARA,” he said.

CIA was not able to provide a date for completion of the transfer, but “we are moving out on the plan to make the transition,” Mr. Trapani said.

In the meantime, “The CREST database housed at NARA will remain up and running at least until the website is fully functioning,” he said.

CIA Poke at DoD Intelligence Was Not “Substantiated”

In a dispute that pitted member agencies of the U.S. intelligence community against each other, the Central Intelligence Agency claimed that “a questionable intelligence activity” had been carried out in 2014 by agents of the Department of Defense.

But an investigation of the matter by the DoD Inspector General that was partially declassified last week failed to corroborate the CIA claim.

At issue was whether or not an unnamed individual had “conducted unauthorized intelligence activities in Europe on behalf of DoD,” as CIA had alleged.

“We were unable to substantiate the CIA allegation and could not find any evidence that [deleted] traveled to Europe or paid any sources on behalf of the DoD,” the Inspector General concluded.

“We could not find evidence of DoD intelligence tasking,” the IG investigative summary said. “In addition, we verified that [deleted] did not travel to Europe in 2014.”

The IG summary report, which had been classified Secret/Noforn, was partially declassified and released under the Freedom of Information Act last Friday.  See Investigative Results of a Questionable Intelligence Activity (redacted), DoD Inspector General report DODIG-2015-171, September 8, 2015.

Meanwhile, for his part, the alleged DoD culprit “asserts that the CIA fabricated the allegation that [deleted] had been conducting intelligence operations in Europe in order to ensure that [several words deleted] because [deleted] claimed [deleted] had previously identified and revealed analytical flaws within CIA analysis.”

However, that counter-accusation “was outside the scope of our investigation and has been referred to the Intelligence Community Inspector General for review.”

The exact nature of the alleged questionable intelligence activity and the identity of the individual(s) involved were not declassified.

Nor would CIA elaborate on the public record.

“You can say CIA declined to comment,” said CIA spokesperson Ryan Trapani.  “We defer to DOD on the document.”

Four Cold War Covert Actions to be Disclosed

The Central Intelligence Agency said that it will disclose four previously unacknowledged Cold War covert actions. The four have not yet been publicly identified, but they will be addressed in forthcoming editions of the U.S. State Department’s official Foreign Relations of the United States (FRUS) series.

“In 2015 [CIA] agreed to acknowledge four covert actions that will be documented in future volumes (of FRUS),” according to a new annual report from the State Department Advisory Committee on Historical Diplomatic Documentation for calendar year 2015.

CIA spokesperson Ryan Trapani declined to say what those four covert actions are.

“CA [covert action] programs are not officially declassified until done so by FRUS, so you have to wait for its formal announcement,” Mr. Trapani said by email.

The FRUS series has been a significant driver of the national security declassification program, particularly since a 1991 statute required that FRUS must present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations — which necessarily includes information that was classified at the time — within 30 years of the events in question.

The State Department has never yet complied with that 30 year deadline, but the new Advisory Committee report indicates the situation is improving. “It is likely that HO [the State Department Office of the Historian] will finally meet its statutory thirty-year timeline as it publishes more volumes in the Reagan administration series over the next few years.”

The Committee report was complimentary towards the CIA, citing “the very positive relationship HO has developed with CIA over the past several years [which] has paid dividends. CIA consistently reviews both specific documents and compiled volumes in a timely manner….”

“Nevertheless, the frequent reliance on covert actions in the Reagan and subsequent administrations will doubtless require lengthy declassification processes that will inevitably delay publication of a significant number of volumes beyond the 30-year target,” the report said.

One specific area of disappointment is the failure to release the long-deferred FRUS volume on the 1953 coup in Iran.

“Owing to the currently volatile relationship between the United States and Iran…, the State Department continues to withhold its approval for publishing the eagerly anticipated retrospective volume on Iran 1953,” the Committee report noted.

The status of the Iran volume is expected to be on the agenda of the upcoming meeting of the State Department Advisory Committee on June 6.

CIA Withdraws Email Destruction Proposal

The Central Intelligence Agency has formally rescinded its widely-criticized plan to destroy the email records of all but 22 senior agency officials, the National Archives said last week.

The CIA proposal generated controversy when it became public in 2014 because of its surprisingly narrow scope, which would have precluded preservation of vast swaths of CIA email records. Such records have proved invaluable not only for historical purposes, but also for contemporary accountability and congressional oversight.

“The agency has withdrawn this schedule effective March 21, 2016, due to the agency’s reorganization,” wrote Margaret Hawkins, director of records appraisal and agency assistance at the National Archives and Records Administration, in an email message to the Federation of American Scientists.

“In our last communication on this schedule, it was conveyed that a public meeting would be held to address all comments received. With the schedule’s withdrawal, this meeting will not be held.”

In any case, CIA is still obliged to present a plan to the National Archives to explain how it will preserve or dispose of its email records. CIA can either adopt the standard template known as the Capstone General Records Schedule, or it can devise a specific plan of its own for approval by the National Archives.

“If the agency chooses to submit a new agency-specific records schedule, it will be available for request and comment to the public through the Federal Register process,” Ms. Hawkins wrote.

In 1963, CIA Said It Had Copies of Soviet Spysat Images

In a newly disclosed memorandum from 1963, the Director of Central Intelligence advised the Secretary of State that the CIA had “good reproductions” of Soviet satellite imagery.

This puzzling remark appears to suggest a previously unrecognized capability of the CIA.

The declassified memo summarizes a July 3, 1963 telephone conversation between DCI John McCone and Secretary of State Dean Rusk. It was discovered by researchers David M. Barrett and Eric P. Swanson.

According to the memo, McCone said that the U.S. had “for some time tried to determine whether the Soviets were actually photographing and the extent they were from satellites.” The DCI said “it has been determined they have been and we have good reproductions of what they are getting.” The DCI was to brief the President on the subject the following week.

In an article discussing the memo in the journal Intelligence & National Security, Barrett and Swanson wrote that they found “no references in the intelligence literature to the United States having had the capability to see what the Soviet satellites were seeing, much less any treatment of how the CIA obtained the ‘good reproductions’.”

Assuming the McCone statement is accurate, it would seem to imply one of a few possibilities. It could mean that the US was somehow intercepting the Soviet images (which seems improbable), or that it was replicating the images through US overflights, or else that it was simply modeling the images based on the presumed capabilities of the Soviet satellites and their orbital parameters.

Prof. Barrett added that the fact that the matter was to be briefed to the President indicated that it was of more than ordinary significance. He also noted that the 1963 memo was located in State Department records at the National Archives, and was not released by CIA.

The import of the memo remains uncertain.

Reproductions of Soviet satellite imagery were “not anything I ever came across some ten years later,” said former CIA analyst Allen Thomson, “and I was in a decent position to see such (Office of Weapons Intelligence).”

“At a guess, perhaps the ‘reproductions’ were simulations based on the technical state of the art at the time (film) and estimates of the camera aperture. That would have been easy enough to do and useful as an aid to orient consumers to what might be in the imagery. Or it could just have meant looking at the ground tracks to see what the satellites overflew,” Mr. Thomson said.

Dino Brugioni, who was a pioneering figure in U.S. imagery intelligence and a CIA official at the time of the McCone memo, passed away in September with little public notice.

Open Source Center (OSC) Becomes Open Source Enterprise (OSE)

The DNI Open Source Center has been redesignated the Open Source Enterprise and incorporated in CIA’s new Directorate of Digital Innovation.

The Open Source Center, established in 2005, was tasked to collect and analyze open source information of intelligence value across all media – – print, broadcast and online. The OSC was the successor to the Foreign Broadcast Information Service (FBIS), which gathered and translated world news coverage and other open source information for half a century.

“As part of the Agency modernization effort announced by Director Brennan earlier this year, the DNI Open Source Center (OSC) changed its name to the Open Source Enterprise (OSE) on October 1, 2015,” said CIA spokesperson Ryan Trapani. “OSE remains dedicated to collecting, analyzing, and disseminating publicly available information of intelligence value. The organization’s new name reflects the broad relevance and scope of the open source mission.”

“OSE retains its role as the Intelligence Community’s (IC) center of excellence for open source collection, analysis, and tradecraft,” he added. “Director Brennan also retains his role as the interagency Open Source Functional manager.”

As FBIS also did for several decades, the Open Source Center used to produce a publicly available line of products, including translations and open source analyses. But at the end of 2013, to the dismay of many longtime subscribers, CIA abruptly terminated that channel of public information, citing costs and the easy availability of alternate public sources.

“That decision was primarily due to the cost-prohibitive nature of updating the feed and in light of the broad accessibility of open source information on the Internet,” said Mr. Trapani. “Nevertheless, OSE remains committed to fulfilling its core mission of collecting, analyzing, and disseminating open source information. At this time, however, OSE has no plans to expand the scope of its services to include the regular release of unclassified, non-copyrighted materials to the public.”

That’s unfortunate.

While there is indeed a surfeit of “news” and “information” of all kinds, the open source analytical products generated in the intelligence community have the potential to add value to public discourse. A somewhat random cross-section of OSC products from several years ago that illustrates the range and quality of these analyses, obtained without authorization, is available here.

“If I were the DNI, I would… direct the OSC to release as much unclassified material as it could,” I suggested in a speech last year to a conference of intelligence community lawyers. But I’m not, and it didn’t.

However, the new ODNI transparency implementation plan may present an occasion to reconsider the CIA non-disclosure policy regarding unclassified open source products.

Though the Open Source Center is no more, its name and logo live on in various locations, like this official website.

“OSE’s portal along with other materials branded with the previous OSC seal and moniker, will be updated with new OSE labeling in the coming months,” Mr. Trapani said.

In 2006, the DNI issued Intelligence Community Directive 301 on the National Open Source Enterprise, but it was rescinded in 2012, according to an ODNI spokesman. “It was determined that ICD 113, Functional Managers, provided sufficient authorities and responsibilities for all functional managers, including D/CIA as the open source intelligence [manager].”

CIA Classification Practices Challenged

The Central Intelligence Agency has improperly classified and withheld from release at least five categories of information related to its post-9/11 rendition, detention and interrogation program, according to a detailed complaint filed by Openthegovernment.org with the Information Security Oversight Office.

Classification of this information has impeded government accountability for the controversial CIA programs and derailed a full public reckoning over abuses that occurred, the complaint said.

“Secrecy regarding ‘black sites’ and torture has played a major role in ensuring that no CIA personnel could be prosecuted for torture, war crimes, destruction of evidence, or other relevant federal crimes. It has ensured that civil courts were closed to victims of torture, indefinitely delayed trials of the accused perpetrators of the September 11 attacks, and put the United States in breach of its obligations under the Convention Against Torture,” wrote Katherine Hawkins, National Security Fellow at Openthegovernment.org, who authored the complaint.

She specified five categories of information that she said had been classified in violation of the executive order governing classification policy and redacted from the summary of the Senate Intelligence Committee report on interrogation:

*     The pseudonyms and titles, and in some cases the names, of CIA officials and contractors implicated in the torture program.

*     The names of countries that hosted black sites (i.e. unacknowledged locations of CIA detention centers abroad).

*     Former CIA detainees’ descriptions of the details of their own torture.

*     The CIA’s involvement in the torture of prisoners in Iraq.

*     The CIA’s rendition of prisoners to torture in foreign custody.

The 38-page complaint presents extensive arguments that certain particular information in each of these categories was improperly classified by the CIA.

“There is strong evidence that classification of evidence regarding the torture program violated the Executive Order, in some cases willfully so,” Ms. Hawkins wrote. “It is important that there be consequences for this abuse of the classification power to deter similar violations in the future. But it is even more important that the cover-up end, and that ISOO act to oversee ongoing CIA classification decisions regarding the rendition, detention and interrogation program.”

John P. Fitzpatrick, the director of the Information Security Oversight Office (ISOO), which oversees the classification system, said his office has already begun “digging into the complaint in detail…. I don’t yet know what level of effort this will require.”

Under Executive Order 13526 (section 5.2(6)), the ISOO director is authorized and required to “consider and take action on complaints and suggestions from persons within or outside the Government with respect to the administration of the [classification] program established under this order.”

As a practical matter, ISOO’s capacity to investigate classification errors is limited by the Office’s size and budget.

Nevertheless, Mr. Fitzpatrick said, “handling complaints like this is part of our mission, so we will have to see what can be done.”

The immediate next steps, he said, include identifying the specific claims advanced by the complaint and the parts of the executive order they may relate to; gathering relevant facts that would support or refute the claims; and performing analysis to reach a conclusion. Considering the length and detail of the complaint, reviewing it “will take time.”

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If there is a systemic solution to the problem of overclassification, it is likely to involve the kind of independent review that has been urged on ISOO by Openthegovernment.org in this case.

Government agencies that are left to their own devices will almost always classify more information than is necessary or appropriate. Without assuming any malign intent on their part, it is simply the path of least resistance.

However, when an agency is required to justify its classification activity to an impartial reviewer, even on a non-adversarial basis, a reduction in the scope of classification results more often than not. This has been confirmed repeatedly.

*    Between 1996 and 2014, the Interagency Security Classification Appeals Panel directed the declassification of information in 71 percent of the documents presented to it by members of the public whose direct requests to agencies had been denied, ISOO reported in 2014.

*    Documents concerning covert actions that the CIA had refused to acknowledge on its own were approved for declassification and publication in the Foreign Relations of the United States series after deliberation by the so-called High-Level Panel composed of representatives of the National Security Council, State Department and CIA.

*    CIA classification of many records related to the JFK assassination could not withstand review by the independent Assassination Records Review Board. The Board ordered declassification of tens of thousands of assassination-related records including millions of pages.

*    Even within individual agencies, the process of challenging classification decisions has borne fruit to a surprising extent. Government employees challenged the classification status of various items of information in 813 cases in FY2014, the Information Security Oversight Office reported. Their classification was overturned in whole or in part in 453 of those cases.

It follows that new venues and new procedures for independently evaluating disputed classification decisions would help to reduce or eliminate spurious classification.