Declassified Damage Assessments May Shed Light on IC’s Snowden Assessment: FRINFORMSUM 9/23/2016

The debate over a presidential pardon for Edward Snowden intensified after the House Intelligence Committee sent President Obama a “startling” September 15 letter that called Snowden a criminal and argued that a pardon would “severely undermine America’s intelligence institutions and core principles.” The letter, which was roundly criticized for perpetuating “numerous false statements and misrepresentations,” and the ensuing debate, is adroitly summarized and analyzed by Steven Aftergood  (who also has an interesting read on President Clinton’s 2001 pardon of Samuel Morison, a Navy intelligence analyst who was convicted under the Espionage Act in 1985 for leaking classified satellite imagery to Jane’s Defence Weekly).

The September 15 House letter was accompanied by a three-page unclassified executive summary on Snowden’s disclosures that argues, among other things, Snowden was not a whistleblower but “was, and remains, a serial exaggerator and fabricator.” The letter also references the Intelligence Community’s still-classified damage assessment of a portion of the documents leaked by Snowden.

Several high-profile damage assessments of classified information leaks have been declassified by the IC, and may shed light on the Snowden assessment. The National Security Archive obtained the CIA’s 1987 damage assessment of Jonathan Pollard; MuckRock posted the Edward Lee Howard damage assessment; the Aldrich Ames damage assessment is available here; and Robert Hanssen’s here.

Aftergood’s analysis of the pardon debate also points out that, with its letter, the House Intelligence Committee missed an opportunity to assess its own role in the Snowden leaks. Daniel Schuman, policy director at Demand Progress, argues that if the Committee had “held up a mirror,” it would have seen that congressional reform is needed to ensure that the “cycle of revelation, scandal, and failure” does not repeat itself. Demand Progress, R Street, Freedom Works, and the Electronic Frontier Foundation published a bipartisan white paper last week that would be an excellent road-map for the committee’s self-evaluation. The paper lays out realistic, actionable reforms that could be taken to strengthen congressional oversight of the IC, including the establishment of “secure mechanisms for whistleblowers to talk to members of Congress” and the creation of a congressional whistleblower ombudsman. (As Nate Jones pointed out last week, it also contains important improvements for the declassification of congressional records.)

The 7th Circuit Court of Appeals ruled in favor of the Reporters Committee for Freedom of the Press in its quest to unseal the 1942 Chicago Tribune grand jury transcripts from a Department of Justice effort to prosecute the paper for publishing classified government information, which is the only time the government has attempted to prosecute the mainstream press under the Espionage Act of 1917. In 1942 the Tribune published a series of stories, based on leaked information, inferring that the U.S. broke a secret Japanese code that significantly assisted the U.S. Navy in winning the Battle of Midway. The National Security Archive joined the filing – with senior Archivist John Prados submitting an affidavit.

Tom Steinberg of CIVICIST recently – and correctly – argued that former White House Office of Information and Regulatory Affairs Administrator Cass Sunstein’s calls for less input transparency  (roughly defined as policy discussions) and more output transparency (roughly defined as regulatory information people can use in their daily lives) misses the mark on what kind of information the government should make public. Sunstein has been on the receiving end of criticism from the National Security Archive and others in recent years for his backwards stance on transparency: in 2014 he criticized an uncontroversial, bipartisan, bicameral  FOIA reform bill – that eventually died – that aimed to curb FOIA’s oft-abused Exemption 5 (which exists to protect “input transparency” and remains one of the most abused FOIA exemptions around), and recently told a packed house at Columbia School of Journalism’s FOIA @ 50 conference that input transparency is “often a bad idea, certainly isn’t a great idea.”

Sunstein’s call for less transparency has, unfortunately, gained traction, including from the Atlantic’s Jonathan Rauch and Vox’s Matthew Yglesias.

Nate Jones recently penned a rebuttal to some of these arguments, including highlighting just a few important news stories made possible by “input” transparency – like emails from Flint, Michigan that exposed both the cost-driven decisions not to add corrosion controls to Flint water supply, and the cover-up to hide the grave mistake, and an email from the State Department’s Press Secretary to the Secretary of State boasting of how the Department successfully “planted” questions on 60 Minutes. Jones’s rebuttal also cites the must-read defense of transparency authored by Gary Bass, Danielle Brian, and Norman Eisen.

Archivist of the United States David Ferriero sent the FOIA Federal Advisory Committee’s recommendations on updating outdated FOIA fee guidance to the Office of Management and Budget. The Archivist’s letter follows the committee’s April 19 vote to recommend that OMB update it’s three-decade-old guidance that is currently missing a key word.

U.S. District Court John McConnell, Jr. recently ordered the Drug Enforcement Administration (DEA) to release thousands of pages of evidence from one of the largest prescription drug trials in American history in response to a FOIA lawsuit brought by Providence journalist Philip Eil. Eil filed a FOIA request in 2012 with the DOJ’s Executive Office of U.S. Attorneys for the federal trial evidence used to convict Dr. Paul Volkman, deemed by the DOJ to be the “largest physician dispenser of oxycodone in the United States from 2003 to 2005,” and who received four consecutive life sentences as a result of the trial. The DOJ transferred the request to the DEA eight months after receiving Eil’s request, at which point the DEA “began to review 15,000 pages and over time processed portions of them, releasing about 1600 pages to Eil and redacting much of the information under” FOIA Exemption 7. Eil was forced to file suit over the egregious withholdings, and while Judge McConnell’s ruling is “a ringing endorsement of the public’s right to know and the importance of an open judicial process,” Eil should never have had to wage a dogged, four-year fight for the documents in the first place. Hopefully the ruling will encourage the DEA and other agencies to fulfill their obligations under the FOIA after receiving a request, not after being sued.

The National Security Agency has released a 72-page monograph on nearly 100-year-old SIGINT information. Many thanks to Matthew Aid for highlighting “Issues in British and American Signals Intelligence, 1919-1932,” which “provides an excellent overview of the relative importance of SIGINT during World War I.”

The Archive’s Peter Kornbluh has written an opinion piece for the Washington Post on “Why the Obama administration is giving old state secrets to Latin American allies.” Kornbluh argues that, “Alongside the traditional instruments of statecraft, the Obama administration has developed an entirely new tool: declassifying decades-old secrets of state to share with other governments and their societies. President Obama has used this declassification diplomacy to mend fences with other countries, advance the cause of human rights and even redress the dark history of Washington’s support for repression abroad. Allies are grateful and historians are delighted. And given the depth and range of still-secret U.S. Cold War records, declassified diplomacy has the potential to go much, much further.” Read the rest here.

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Happy FOIA-ing!