Coalition Asks Biden to do More for FOIA, Transparency: FRINFORMSUM 2/25/2021

There’s Still Plenty President Biden Can Do to Boost FOIA In His First 100 Days 

President Biden did not follow in President Obama’s footsteps and issue a memorandum on the Freedom of Information Act on his first full day in office – but there is still plenty President Biden can do in his first 100 days to promote open government. To that end, the National Security Archive joined a coalition of good government groups in urging the Biden administration to take specific, meaningful steps to strengthen the Freedom of Information Act and reduce government secrecy. In a letter spearheaded by the ACLU and the Knight First Amendment Institute at Columbia University, the coalition asked the president to, among other things, work with Congress to increase funding for agencies’ record-keeping activities, direct agencies to proactively disclose specific categories of records likely to be of public interest (something agencies should already be doing), disclose key records of the previous administration, and complete the National FOIA portal that was mandated by the 2016 FOIA amendments. Read the entire letter here. 

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Justice Department’s Nazi-Hunting Program In the News – Read the Docs Behind It

The United States recently deported a 95-year-old former German concentration camp guard who had been living in Tennessee to Germany. The deportation was based on evidence found on a sunken ship that proved his role as a guard in the camps, and is likely one of the – if not the – last of the 70 Nazi-related deporatations the Justice Department has carried out since 1979.

The deportation is a near-final chapter on the U.S. government’s efforts to hunt (and occasionally protect) Nazis who immigrated to the States. The National Security Archive has actively sought Justice Department records on its Nazi-hunting activities for decades, most famously including a FOIA request for the DOJ’s Office of Speical Investigations 2006 report, “Striving for AccountabUity in the Aftermath of the Holocaust”. The DOJ initially redacted the document to such a self-defeating extent that former officials leaked the entire document to the New York Times instead of fulfilling our FOIA. Read more about the DOJ report here.

The Archive also obtained CIA’s secret documentary history of the U.S government’s relationship with General Reinhard Gehlen, the German army’s intelligence chief for the Eastern Front during World War II, which is available on our website. 

Lawsuit Saves Trump White House Records

The National Security Archive et. al. v. Donald J. Trump et. al. lawsuit, filed December 1, 2020 to prevent a possible bonfire of records in the Rose Garden, achieved a formal litigation hold on White House records that lasted all the way through the transition and Inauguration Day, the preservation of controversial WhatsApp messages, and a formal change in White House records policy.

The Archive worked with co-plaintiffs – the Society for Historians of American Foreign Relations (SHAFR) and the American Historical Association (AHA), as well as Citizens for Responsibility and Ethics in Washington (CREW) – to bring the case against President Trump, the Executive Office of the President, and the National Archives & Records Administration (NARA).

The lawsuit argued that Trump White House policy that only saved via screen shots the instant messages of government business – such as Jared Kushner’s negotiations with Saudi prince bin Salman – failed to capture the complete record that the law required. Plaintiffs pointed to repeated media accounts of White House failures to preserve records, including President Trump’s reported ripping up of documents in the Oval Office, former aide Steve Bannon’s use of disappearing instant messages to communicate with campaign embeds at the agencies, private email use by Ivanka Trump and other top officials, and the routine use of encrypted WhatsApp messages by Kushner and others.

Justice Department lawyers defending against the lawsuit have informed plaintiffs that White House records managers have now successfully deployed an archival tool in the WhatsApp software to capture full copies including links and attachments of the WhatsApp threads in Kushner’s account and other WhatsApp users at the White House.

Secrets of the ‘Havana Syndrome’: How Trump’s State Department and CIA Mishandled the Mysterious Maladies in Cuba

The Trump administration’s response to the mysterious health episodes experienced by intelligence and diplomatic personnel in Havana, Cuba, in late 2016 and 2017 was plagued by mismanagement, poor leadership, lack of coordination and a failure to follow established procedures, according to a formerly secret internal State Department review recently posted by the Archive. “The Department of State’s response to these incidents was characterized by a lack of senior leadership, ineffective communications, and systemic disorganization,” states the executive summary of the report, compiled by the Accountability Review Board (ARB) after a four-month investigation in 2018 that included interviews with CIA officers.

The report, stamped SECRET/NOFORN and obtained by the FOIA through the Archive, was provided to Tillerson’s successor, Mike Pompeo, on June 7, 2018. A full eighteen months after the unexplained afflictions were first reported, the ARB conceded that what happened in Havana remained shrouded in mystery. “The mechanism for the cause of the injuries is currently unknown. We do not know the motive behind these incidents, when they actually commenced, or who did it,” the report states. “We do know that USG, and Canadian diplomatic community members, were injured, but we do not know how. We do not know what happened, when it happened, who did it, or why.”

“The ARB report sheds considerable light on the ‘Havana Syndrome’ history,” said Peter Kornbluh, who directs the Archive’s Cuba Documentation Project. “But it does not solve the enduring mystery of what happened in Cuba.” The clues to resolving that mystery, he noted, are likely to be found in still-secret State Department, CIA, FBI, and Pentagon records, which remain immediately relevant as the Biden administration considers restoring Embassy staffing to full operations.

Able Archer War Scare “Potentially Disastrous”

“What might have happened that day in November 1983 if we had begun a precautionary generation of forces” against a Soviet alert in response to the Able Archer 83 NATO nuclear release exercise?  This is the question Lieutenant General Leonard H. Perroots asked in his January 1989 End of Tour Report Addendum published this week in the State Department’s Foreign Relations of the United States series, edited by Elizabeth C. Charles.

The FRUS volume, Foreign Relations of the United States, 1981–1988, Volume IV, Soviet Union, January 1983–March 1985, is a collection of more than 380 declassified records documenting the beginning of the end of the Cold War. The volume includes a trove of revelations about the 1983 War Scare, including the almost completely unredacted text of Lt. Gen. Perroots’s “parting shot before retirement”. Perroots served as Assistant Chief of Staff for Intelligence, US Air Forces Europe, during the 1983 Able Archer exercise, and rose to become the Director of the Defense Intelligence Agency. In January 1989, Perroots sent senior intelligence officials a classified “letter outlining his disquiet over the inadequate treatment of the Soviet war scare” before retiring from government service.

Perroots’s letter sparked a full, all-source investigation by the President’s Foreign Intelligence Advisory Board, culminating in its highly secret 1990 report “The Soviet ‘War Scare’”. The National Security Archive won declassification of the PFIAB report in 2015 through an interagency appeals panel decision after a 12-year struggle.  The detailed PFIAB report concluded that the U.S. “may have inadvertently placed our relations with the Soviet Union on a hair trigger” during Able Archer, and commended Perroots for having avoided any escalation. 

In Brief

– GAO FOIA Report Shows New B3s Cropping Up – the Government Accountability Office recently released a study on agencies’ application of the (b)(3) FOIA exemptions. (B)(3) is an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has closer to 260 – including one about watermelon production data. Perhaps the most interesting part of the report is appendix IV, which highlights the “19 additional Freedom of Information Act (b)(3) exemption statutes used by agencies in fiscal years 2017 through 2019 that were not cited in fiscal years 2010 through 2016”. Thanks to CATO’s Patrick Eddington for making us aware of this report.