CIA Defends Selective Disclosure to Reporters

The Central Intelligence Agency said yesterday that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.

FOIA requester Adam Johnson had obtained CIA emails sent to various members of the press including some that were redacted as classified. How, he wondered, could the CIA give information to uncleared reporters — in this case Siobhan Gorman (then) of the Wall Street Journal, David Ignatius of the Washington Post, and Scott Shane of the New York Times — and yet refuse to give it to him? In an effort to discover the secret messages, he filed a FOIA lawsuit.

His question is a good one, said Chief Judge Colleen MacMahon of the Southern District of New York in a court order last month. “The issue is whether the CIA waived its right to rely on otherwise applicable exemptions to FOIA disclosure by admittedly disclosing information selectively to one particular reporter [or three].”

“In this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private,” she wrote. “There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including ‘trusted reporters,’ for any purpose, including the protection of CIA sources and methods that might otherwise be outed. The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?”

Judge MacMahon therefore ordered CIA to prepare a more rigorous justification of its legal position. It was filed by the government yesterday.

CIA argued that the court is wrong to think that limited, selective disclosures of classified information are prohibited or unauthorized by law. The National Security Act only requires protection of intelligence sources and methods from “unauthorized” disclosure, not from authorized disclosure. And because the disclosures at issue were actually intended to protect intelligence sources and methods, they were fully authorized, CIA said. “The CIA properly exercised its broad discretion to provide certain limited information to the three reporters.”

“The Court’s supposition that a limited disclosure of information to three journalists necessarily equates to a disclosure to the public at large is legally and factually mistaken,” the CIA response stated. “The record demonstrates beyond dispute that the classified and statutorily protected information withheld from the emails has not entered the public domain. For these reasons, the limited disclosures here did not effect any waiver of FOIA’s exemptions.”

A reply from plaintiff Adam Johnson is due March 1. (Prior coverage: Tech Dirt, Intel Today).

Selective disclosure of classified information to uncleared reporters is a more or less established practice that is recognized by Congress, which has required periodic reporting to Congress of such disclosures. See Disclosing Classified Info to the Press — With Permission, Secrecy News, January 4, 2017.

The nature of FOIA litigation is such that a lawsuit that was intended to challenge the practice of selective disclosure could, if unsuccessful, end up ratifying and reinforcing it.

Release of Security Clearance Data Delayed

Recent news stories on security clearances (like these from the Christian Science Monitor and NPR) cite data from 2015 regarding the number of persons cleared for access to classified information (4.2 million at that time).

Why aren’t more current numbers being cited?

More recent information has already been compiled in an annual report to Congress that was completed in October 2017. But its release to the public has been delayed indefinitely by an internal intelligence community dispute over the classification status or sensitivity of some of the more detailed reporting on individual agency statistics that are contained in the report.

In fact, the same detailed reporting was provided in the 2015 report and the same dispute over publication arose. But at that time, Obama Administration intelligence officials told security officers in effect to “knock it off” and to just release the report, which they did in June 2016.

The public disclosure of security clearance data was one of dozens of fundamental changes to national security information policy that were made during the Obama Administration to promote greater transparency. Although the annual report on security clearances was required by Congress (in the FY 10 intelligence authorization act), its public disclosure was a choice made by the Obama Administration. Now a different choice is being made.

A FOIA request for release of the latest report on security clearances is pending.

CSI: Palestine

The U.S. State Department provided crime scene investigation (CSI) equipment to Palestinian security forces to encourage a “move away from a confession-based investigation process,” according to a 2016 report to Congress that was recently released under the Freedom of Information Act.

See U.S. Assistance for Palestinian Security Forces and Benchmarks for Palestinian Security Assistance Funds, FY 2016 report to Congress, US Department of State.

The report provides a snapshot of US security assistance to the Palestinian Authority (PA) in March-August 2016, when the US provided training as well as technical support to enhance the quality and professionalism of Palestinian security practices. The report also describes steps taken by the State Department to ensure that any such assistance would not be diverted to unauthorized purposes.

U.S. support for PA security forces and the criminal justice sector in the West Bank has averaged around $100 million since 2008, according to the Congressional Research Service, though the amount has declined in recent years.

This funding “has been given to train, reform, advise, house, and provide nonlethal equipment for PA civil security forces in the West Bank loyal to President Abbas. This aid is aimed at countering militants from organizations such as Hamas and Palestine Islamic Jihad-Shaqaqi Faction, and establishing the rule of law for an expected Palestinian state.” See U.S. Foreign Aid to the Palestinians by Jim Zanotti, Congressional Research Service, December 16, 2016.

Prior background on the origins of US-Palestinian cooperation was presented by CRS in U.S. Security Assistance to the Palestinian Authority, January 8, 2010.

Some Palestinian critics object to the US security assistance program as an improper intervention in Palestinian politics that effectively strengthens Israeli occupation of the West Bank. See How US security aid to PA sustains Israel’s occupation by Alaa Tartir, Al Jazeera, December 2, 2016.

The current state of implementation of the Freedom of Information Act at the State Department is such that even a request for a specified unclassified document — such as the 2016 report to Congress on security assistance to the Palestinian Authority — took nearly two years to fulfill.

Update: Amir Oren reported on the State Department document in Walla news (in Hebrew).

US-China Scientific Cooperation “Mutually Beneficial”

The US and China have successfully carried out a wide range of cooperative science and technology projects in recent years, the State Department told Congress last year in a newly released report.

Joint programs between government agencies on topics ranging from pest control to elephant conservation to clean energy evidently worked to the benefit of both countries.

“Science and technology engagement with the United States continues to be highly valued by the Chinese government,” the report said.

At the same time, “Cooperative activities also accelerated scientific progress in the United States and provided significant direct benefit to a range of U.S. technical agencies.”

The 2016 biennial report to Congress, released last week under the Freedom of Information Act, describes programs that were ongoing in 2014-2015.

See Implementation of Agreement between the United States and China on Science and Technology, report to Congress, US Department of State, April 2016.

DoD Again Seeks FOIA Exemption for Military Tactics

For the third time, the Department of Defense is asking Congress to enact a new exemption from the Freedom of Information Act for certain military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of TTPs or rules of engagement that will be employed in such operations,” DoD said in its legislative proposals for the FY2018 defense authorization act. “If an adversary or potential adversary has knowledge of this information, the adversary will gain invaluable knowledge on how our forces operate in given situations.”

“Military TTPs and rules of engagement are analogous to law enforcement techniques and procedures, which Congress has afforded protection,” DoD said. See section 1003 of DoD’s proposed defense authorization act for FY2018.

DoD is not seeking to exempt all TTP records as a class. Rather, the proposal is that specified TTP information could be withheld under FOIA if the Secretary of Defense determined in writing that its disclosure would be likely to provide “an operational military advantage to an adversary” and that the public interest in the information does not outweigh the potential risk. This determination would have to be made personally by the Secretary of Defense, and could not be delegated. It would require a written justification that would have to be available to the public on request.

Similar legislative proposals were introduced by the Department of Defense in the past two years.

Wary of any move to expand DoD’s authority to withhold information, however, many advocates of open government opposed the measure. Truly sensitive military information could be classified, they argued, and an existing FOIA exemption “more than adequately protects such information.” In any event, despite repeated requests, the DoD proposal was not approved by Congress.

The Department of Defense and the military services (especially the Army) generate dozens if not hundreds of doctrinal publications every day. Many of them are closely held, but many others are freely published. The latter, at least, would seem to be outside the scope of the proposed new exemption for TTPs and rules of engagement, if it were ever enacted.

A new document on DoD interactions with foreign security forces, of interest to some, was posted online by DoD this week. See Security Cooperation, Joint Publication 3-20, May 23, 2017.

Number of FOIA Requests Reaches Record High

Federal government agencies received more Freedom of Information Act requests last year than ever before, the Justice Department reported last week, reflecting a steadily growing demand for access to government information.

Nearly 790,000 FOIA requests were received in FY 2016, an increase of more than 10% from the year before. The majority of requests were submitted to the Departments of Homeland Security, Justice, Defense, Veterans Affairs, and the National Archives.

Approximately 760,000 requests were processed throughout the year (including denials, and administrative or procedural closures). Requests were fully granted in 23.1% of the the cases, and partially granted in 36.8% of them.

The total estimated cost of implementing the FOIA in 2016 was more than $500 million. Fees collected from requesters recovered less than 1% of that amount, the DOJ report said. See Summary of Fiscal Year 2016 Annual FOIA Reports Published, DOJ Office of Information Policy, May 3.

Almost everyone involved with the FOIA — requesters as well as agencies — seems to be dissatisfied with the way the process works. It can be excruciatingly slow, with response times often counted in years. Decisions to withhold information frequently appear arbitrary, excessive or otherwise inappropriate. The system is inequitable, as super-users who file hundreds or thousands of requests (and those who are able and willing to litigate their requests in court) consume disproportionate amounts of government resources, putting more occasional requesters at a disadvantage. And so on.

These are mostly complaints that the FOIA has failed to live up to expectations.

A deeper criticism would be that the FOIA process as it currently exists is not simply inadequate, it is positively counterproductive.

“FOIA not only fails to deliver on ostensible goals such as participatory policymaking, equal access to information, and full agency disclosure, but also has evolved to subvert some of these goals as well as other public law values,” writes David E. Pozen of Columbia Law School in a blistering new critique.

FOIA “systematically skews the production of information toward commercial interests and facilitates powerful antiregulatory agendas. The inadequacies of FOIA’s original design have been exacerbated by external developments, including the decline of the traditional news media and the rise of hyper-adversarial watchdog groups on the right. Our veneration of FOIA has blinded us to the politics of FOIA.”

“The most promising path forward,” he suggests, “involves displacing FOIA requests as the lynchpin of transparency policy and shoring up alternative strategies, above all affirmative disclosure frameworks that release information in the absence of a request.”

Counterexamples and counterarguments will likely occur to many readers of his article, though the author has anticipated many of those. One possible conclusion that might emerge from Pozen’s thoughtful critique is that while FOIA is still needed to pursue contested areas where government is reluctant to disclose information, it is poorly suited to serve as the primary foundation or anchor of open government.

See Freedom of Information Beyond the Freedom of Information Act by David E. Pozen, University of Pennsylvania Law Review, vol. 165, pp. 1097-1158, 2017.

37 Leak Cases Were Reported to Dept of Justice in 2016

Executive branch agencies submitted 37 “crimes reports” to the Department of Justice last year regarding leaks of classified information.

In response to a Freedom of Information Act request, wrote Patricia Matthews of the DOJ National Security Division, “We have conducted a search of the Counterintelligence and Export Control Section.  A records search of that Section indicates that 37 crime reports concerning unauthorized disclosures of classified information were received by DOJ in CY 2016.” (The specific nature of the leaks and the government’s responses to them were not disclosed.)

The 2016 figure is double the number of suspected criminal leak cases reported in 2015. But it is consistent with the average number of leak cases from 2009 to 2015, which is 39.7.

What makes the latest number of reported leaks interesting is not that it deviates sharply from past experience but that it does not.

Evidently there is a baseline of leakiness that persists even in the face of strenuous official efforts to combat leaks.

President Obama issued executive order 13587 in 2011 to improve safeguarding of classified information. He issued a National Insider Threat Policy in 2012, which was intended in part to deter unauthorized disclosures of classified information. The Obama Administration famously prosecuted more suspected leakers than ever before. But after all of that, the annual number of suspected criminal leaks is stable and undiminished.

Among other things, this has implications for security policy. Since leaks continue despite government actions to suppress them, prudent security officers will limit their vulnerability by using classification more selectively, by further reducing the security-cleared population, and by aiming for resilience to unwanted disclosure rather than for perfect secrecy.

“There’s been major crimes committed,” House Intelligence Committee chairman Rep. Devin Nunes (R-CA) told reporters yesterday, referring to the latest leaks in the Trump Administration. “What I’m concerned about is no one is focusing on major leaks that have occurred here… We can’t run a government like this. A government can’t function with massive leaks at the highest level.”

But the record of the past decade indicates that the government has no alternative but to operate in a leaky environment.

A stronger argument could even be made that some irreducible level of leakiness serves a salutary purpose as a check against misconduct. A perfectly reliable and altogether leak-proof secrecy system would present an irresistibly dangerous temptation to irresponsible political leaders.

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.)

*    *    *

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.

FOIA Improvement Act Signed Into Law

President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act of 2016 yesterday.

The Act places a 25 year limit on the use of the deliberative process exemption, codifies a presumption of openness, and makes various procedural improvements in the FOIA. The Department of Justice summarized its understanding of the new law here.

The White House portrayed the law as consistent with its own record of promoting open government.

“I am very proud of all the work we’ve done to try to make government more open and responsive, but I know that people haven’t always been satisfied with the speed with which they’re getting responses and requests,” President Obama said at an Oval Office signing ceremony. “Hopefully this is going to help and be an important initiative for us to continue on the reform path.”

A White House fact sheet said that more would be done. “The Administration is taking a number of steps to further the progress made since 2009, ensuring that this Administration’s track record of openness is institutionalized throughout government and carries forward for years to come.”

But the new FOIA law explicitly provides no new resources for implementation. So in the face of rising and, in fact, unconstrained demand from some FOIA users, it is unclear how much improvement the FOIA Improvement Act can be expected to generate for the average requester.

“In honor of Congress’ passage of FOIA reform bill, I just submitted approx 700 new #FOIA requests to FBI,” tweeted FOIA campaigner Ryan Shapiro on June 14. He did not appear to be joking.