Declassified Docs Show Reagan and H.W. Bush Sought Strong American Leadership on Climate Change, NSL Contents Revealed, and Much More: FRINFORMSUM 12/3/2015

President Reagan walking with Secretary of State George Shultz outside the oval office, December 4, 1986. Photo courtesy of the Ronald Reagan Presidential Library, Photograph no. C38208-20.

The National Security Archive’s latest posting shows that Republican presidents Ronald Reagan and George H.W. Bush actively promoted measures to combat climate change in the 1980s in connection with the Montreal Protocol. Recently declassified records, posted as world leaders meet in Paris to discuss the latest round of climate talks, show that the two presidents shared a desire for strong American leadership on climate issues, with Reagan in 1987 overruling objections within his own Cabinet to a major proposed treaty to protect the ozone layer. Memos for senior State Department officials note that “Global climate change is the most far reaching environmental issue of our time” and that notwithstanding the need for continued research, “We simply cannot wait – the costs of inaction will be too high.” The Washington Post notes that “The assertive posture contrasts with the positions taken this week by leading Republican presidential contenders, several of whom publicly mocked Obama’s efforts to secure an international climate treaty in Paris.” A follow-up posting on the Clinton administration’s climate policies will be posted on the Archive’s website later this month.

Nicholas Merrill in 2011. Credit Fred R. Conrad/The New York Times

Nicholas Merrill, who ran the small Internet company Calyx, has become the first person allowed to fully disclose the contents of a National Security Letter (NSL) he received from the FBI in 2004. (The Archive’s backgrounder on NSLs, which demand business records from a wide array of organizations for national security investigations and whose non-disclosure provisions prevent the full extent of the NSL program from becoming known, can be found here.) Thanks to a multi-year court battle Merrill’s gag order has been lifted, and reveals that in 2004 the FBI demanded Merrill “turn over all physical mail addresses, email addresses and Internet Protocol addresses associated with one customer’s account, as well as telephone and billing records and anything else considered to be an ‘electronic communications transactional record.’” The NSL also demanded cell-tower location data and any “screen names” or online nicknames associated with the customer in question.

In a worrisome move that has no statutory basis in the FOIA, the FBI’s new online FOIA portal requires requesters to upload a government-issued photo ID and limits requesters to making one request a day. The FOIA allows “any person” regardless of citizenship to make a records request, prompting Steven Aftergood, the director of the Federation of American Scientists, to say the bureau was going beyond the bounds of the law and making arbitrary filing requirements up “out of thin air” – ostensibly to discourage the filing of FOIA requests.

The State Department’s FOIA office redacted a 2013 list of Hillary Clinton’s “achievements” while secretary of state, citing FOIA’s “withhold it because you want to” exemption 5. The very dubious redaction is found among the State Department’s latest release of Hillary Clinton’s emails – nearly 8,000 pages – that were “sent directly to Hillary’s chief of staff by her spokesman, Philippe Reines.” The redaction is “especially curious since Clinton left office on February 1, 2013, just two days after Reines sent the ‘Achievements’ e-mail to Hillary’s chief of staff.” The latest release includes 328 documents “that are now deemed classified, bringing the total number of messages partially withheld on that basis to 999.”

The Second Circuit, in a recent panel opinion regarding the ACLU/New York Times FOIA lawsuit seeking OLC targeted killing documents, found that “the government did not waive its right to withhold a 2002 OLC legal opinion under FOIA Exemption 5 by making public statements on subjects related to the opinion more than eight years after it was written.” The ruling will keep much of the program secret, and, more broadly, “supports the argument that a waiver of Exemption 5 privileges for one document cannot be extended to other documents even if the documents are related, particularly when the statement constituting waiver occurs many years later.” As Brett Max Kaufman recently pointed out for Just Security, the Second Circuit’s decision is especially disappointing as last year it ordered the government to disclose key portions of a July 2010 OLC memo on the targeted killing of an American citizen in Yemen.

Five “friends of the court” have been appointed to serve as special non-governmental advisers to the Foreign Intelligence Surveillance Court (FISC), which, until now, has only heard arguments from the government. Under the USA Freedom Act, the five lawyers will offer “legal and or technical expertise” for any issue that the FISA court decides which “presents a novel or significant interpretation of the law.”

It is unclear what will happen to the phone records data still in the NSA’s possession. Photo: Patrick Semansky/AP/File

The USA Freedom Act also called for an end to the National Security Agency’s bulk collection of domestic phone records by November 28 and the creation of a new system that will require the government to obtain a court order to request information directly from phone companies. The Washington Post underscores, however, that “The act did not specifically require the government to purge the treasure trove of data amassed by the old program, although the government has indicated it planned to ‘cease’ accessing it.” It is unclear what will become of the previously collected data; Ellen Nakashima points out that the NSA is maintaining the historical phone data until February 29 for technical personnel to ensure the new system is working properly, and that the government remains “under a legal obligation to preserve the phone metadata it has collected until civil litigation regarding the program is resolved or the relevant courts relieve the NSA of such obligations.”

At least 20 inspector general investigations across the federal government – 14 at the Department of Justice alone – have been delayed or closed over “a long-simmering dispute between the Obama administration and its own watchdogs over the shrinking access of inspectors general to confidential records, according to records and interviews.” While the inspector general system – created in 1978 in the wake of the Watergate scandal – provides IGs with access to “all records”, a July opinion from the Justice Department’s Office of Legal Counsel argued “that some protected records, like grand jury transcripts, wiretap intercepts and financial credit reports, could be kept off limits to government investigators.” The Justice Department’s own inspector general, Michael Horowitz, says that thanks to the OLC opinion,  “The bottom line is that we’re no longer independent,” and that DOJ IG investigations into the FBI’s use of “records collected by the National Security Agency, the government’s sharing of intelligence information before the 2013 Boston Marathon bombings, a notorious gun-tracing operation known as ‘Fast and Furious’” have been hindered as a result.

The Pentagon’s Inspector General, Jon Rymer, announced his resignation this week and his intention to return to the private sector. The DOD IG is currently investigating, among other things, reports that CENTCOM officers manipulated intelligence assessments about the campaign against ISIS and accusations that US officials ignored allegations of Afghan child abuse perpetrated by the US’s Afghan allies.

The House passed its fiscal year 2016 spending intelligence bill, voting for a measure that will both authorize a 7 percent increase in intelligence spending and “restrict[] the president’s privacy and civil liberties board from obtaining information about covert CIA operations.” The majority of the measure is classified and must be reconciled with the Senate bill.

This week’s #tbt pick is a 2009 posting on the challenges President Obama faced during the Copenhagen climate negotiations, and their parallels to the roadblocks Clinton faced a decade earlier during the Kyoto climate talks.

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

Happy FOIA-ing!