Federal Judge Not Amused By State Department's Continued Withholding Of Hillary Clinton's Emails

from the and-not-even-HE-can-force-it-to-work-faster dept

A federal judge has expressed his displeasure at the State Department's ongoing foot-dragging over the release of Hillary Clinton's emails.

US District Court Judge Rudolph Contreras told lawyers in a Washington, DC courtroom that "the government put me between a rock and a hard place" by failing to meet the deadline and asking for more time. Contreras didn't want the emails released without being properly vetted for sensitive information — State says it needs more time for the vetting process — but postponing the release was also to the detriment of the American public.

"To state the obvious, these documents have a lot of public interest, and the timing is important," Contreras said.

Contreras undersells the public interest -- which has been high ever since it was discovered Clinton had been conducting official (and sensitive) business using a private email server. Now that Clinton is a presidential candidate, the release of the emails could adversely affect her campaign.

I don't believe the State Department has a personal stake in Clinton's potential presidency, but it's operating in a way that would encourage people to come to that conclusion. Instead, this is likely business as usual for the agency.

For one, government agencies protect their own. Clinton's use of a private server makes the State Department look bad because no one with the power to do so ever made an effort to shut her down. Released emails show Clinton dealt with classified material, something that should never have been routed to a private email account. The State Department's lackadaisical handling of this matter would only be highlighted further by additional releases.

That's one aspect of it. The other is that the State Department is just generally terrible at handling FOIA responses. The agency's Inspector General released a report in January that showed the agency was more than just merely inept. Its FOIA response system is almost completely broken.

The report from State Department Inspector General Steve Linick points to a series of failures in the procedures the office of the secretary used to respond to public records requests, including a lack of written policies and training, as well as inconsistent oversight by senior personnel. The report also faulted the secretary’s office for a practice of not searching for emails responsive to FOIA requests unless the request specifically asked for emails or demanded “all records” on a topic.

“These procedural weaknesses, coupled with the lack of oversight by leadership and failure to routinely search emails, appear to contribute to inaccurate and incomplete responses,” the report says.

[...]

The report also points to extreme delays in other cases, such as an Associated Press request for Clinton’s schedules that was pending without substantive response for five years.

The outcome, however, is indiscernible from an active effort to shore up a candidate's presidential race. Judge Contreras is aware of this. He's attempting to set another hard deadline for the release of still-withheld emails, but there's only so much he can do when the State Department has casually rolled past other deadlines it's been given.

"Explain to me again why something that's gone through the legal reviews could not be posted until a week from Thursday," Contreras responded. "This seems like an unreasonably long period of time to post, or give access to, something that has already passed clearance."

The judge ordered State to provide "a very specific description" the following day of why the cleared files couldn't be released sooner. He also told State to consider alternative methods of disclosing the emails that might give VICE News access to them sooner, such as allowing the pages to be viewed on a screen without actually delivering them.

As it stands now -- even without malice aforethought by the State Department -- four states will have concluded their primaries before the agency has to produce the documents.

Filed Under: clinton emails, emails, foia, hillary clinton, jason leopold, rudolph contreras, state department

DOJ Lies To 'FOIA Terrorist' Jason Leopold; Claim They Have No Documents On Aaron Swartz

from the buncha-liars dept

Back in 2013, not long after Aaron Swartz's tragic suicide, reporter Kevin Poulsen (who had also worked with Swartz on what became SecureDrop, the system for whistleblowers to anonymously submit documents to journalists) submitted a Freedom of Information Act with the Department of Homeland Security about what info it had on Swartz. There were some legal fights about it, but eventually DHS was forced to release the documents, which now reside at a site set up by Poulsen called SwartzFiles.com. These documents revealed things like the government's weird infatuation with the Guerrilla Open Access Manifesto, that many believe was written (at least in part) by Swartz (there's at least some dispute over this).

Meanwhile, Jason Leopold, who uses FOIA requests so frequently and so effectively that the DOJ once labeled him a "FOIA Terrorist," submitted a similar request with the Justice Department -- specifically targeting the US Attorney's Office in Massachusetts -- which is the office out of which Swartz's case was prosecuted. Obviously, they have plenty of such documents. In fact, in Poulsen's DHS Swartz files there are emails between DHS and DOJ folks. But, an astounding three years and 11 days after Leopold submitted his FOIA request, the DOJ has told him it has no responsive documents. That's obviously bullshit. There's simply no way that the office that was prosecuting Swartz has no responsive documents on the case.

And, of course, perhaps the worst FOIA requester to give a bogus answer to is Jason Leopold. Not only is he one of the most persistent FOIA filers, he also is absolutely willing to file FOIA lawsuits when the government tries to deny him what he wants. As a recent profile noted, he's filed more FOIA lawsuits by himself than almost all other news organizations combined. And it seems quite likely that the DOJ just convinced him to file another such lawsuit.

Filed Under: aaron swartz, carmen ortiz, doj, foia, jason leopold, us attorney's office

Feds Keep Magically Finding Documents They Insisted Didn't Previously Exist

from the funny-how-that-works dept

We just wrote about a FOIA request where the government said there were no responsive documents, even though it had already released the very responsive document. It appears that this kind of thing is a common problem in the government -- and it doesn't seem to get solved until you sue the government. Here are two examples.

First up, Gawker had sought the email communications of Hillary Clinton deputy Philippe Reines, focused on his conversations with journalists. The State Department came back with a no responsive records reply, which was clearly bullshit, since Reines was known for regularly emailing reporters. So Gawker sued and guess what just happened: the State Department just magically found 17,855 emails that are likely responsive. How about that?

Next, we've got Vice, where "FOIA terrorist" Jason Leopold is employed. As you may remember, back in 2014, Ed Snowden claimed that he had made multiple attempts at raising concerns internally at the NSA. Eventually, the Director of National Intelligence released a single email between Snowden and the NSA's General Counsel, which was just asking a specific question. The NSA did hint (in a different FOIA request response) at the likelihood of there being more emails it didn't plan to release. Leopold sent a more specific FOIA request to the NSA... and was told there were "no responsive documents."

And, as he's done more than basically anyone, Leopold sued. And at a hearing in that case, the government is now admitting that there are three more emails that Snowden sent to the NSA's Oversight & Compliance Office, though the DOJ claims that none of these emails were actually raising questions about NSA surveillance. It's certainly possible that, in this case, it's true that there really were no more responsive documents, but the late addition noting these three other emails, once again, suggests that when sued, the government suddenly starts finding more documents than when directly asked under FOIA.

Filed Under: documents, doj, ed snowden, foia, hillary clinton, jason leopold, lawsuits, philippe reines
Companies: gawker, vice

The Faulty Google Search That Set Off A Constitutional Crisis

from the code-is-law dept

We already wrote about Jason Leopold "accidentally" receiving a letter the CIA never actually sent that was an apology for spying on Senate staffers, but there was a lot more that Leopold received in that FOIA dump as well. Beyond the document Leopold wasn't supposed to receive, the 300 pages handed over by the CIA (not by its voluntary desire to respect FOIA stipulations, but rather because a judge told it to) provide additional details about the alleged Senate breach and its "investigative" spying -- and the ensuing fight that set off something of a Constitutional crisis in the separation of powers between the executive branch and the legislative branch.

Leopold's article goes into great depth on the subject and is well-worth reading in its entirety. One of the many, many details worth noting is that the CIA's "firewall" between it and Senate staffers wasn't really anything of the sort. A Google-powered custom search function allowed staffers to search CIA documents, but only the documents the CIA wanted them to see. The problem was that the search didn't work correctly. Keyword searches were returning documents the CIA hadn't approved for Senate perusal. This was how the hidden Panetta Report was discovered.

The CIA claimed Senate staffers had abused their privileges by accessing and downloading documents the agency hadn't meant to make available. But the blame was misplaced. The search "appliance" configuration itself was faulty, and had been for years. And, from there, the CIA decided it was okay to spy on the Senate staffers' work, raising questions about the separation of powers.

"In November 2012, the RDI team learned of a vulnerability with the Google appliance, related to configuration settings that had been in place since the initial installation in November 2009," the OIG's report says. "[The Office of Inspector General] reviewed an April 2013 email between members of the RDINet IT staff detailing the existing settings, which indicated an access control deficiency for search results. The RDI IT team updated the Google appliance in April 2013 to reflect this change. Prior to this update, the settings provided to the [Office of Inspector General] showed that the Google appliance was not configured to enforce access rights or search permissions within RDINet and its holdings."

Weaver explained that the Cyber Blue Team concluded the Google appliance "wasn't enforcing permissions properly, and revealing accessible locations for the [CIA] files."

A problem the CIA was aware of but had never bothered to fix was now being portrayed as a breach of trust (at best) by the Senate staffers compiling the Torture Report. Brennan knew about the misconfigured search tool but still went after Feinstein and Senate staffers, accusing them of "hacking" the CIA's system and making off with a purloined copy of the Panetta Review.

Considering the Panetta Review was the former CIA director's own investigation into the CIA's torture programs, one would assume these documents would be highly relevant to the task at hand -- the compilation of the torture report. But the findings contained in it were so toxic the CIA immediately began burying the documents using every opaque agency's favorite hiding place: the oft-abused "deliberative documents" exemption.

US officials told VICE News that the Panetta Review was shut down for one reason: the CIA team conducting it discovered damning inconsistencies in reports agency officials made to Congress about the efficacy of the program, and horrific details about the way detainees were treated. These revelations by the CIA's own employees contradicted agency officials who had continued to publicly defend the program's value. The internal reports the Panetta Review team wrote, US officials told VICE News, were so troubling that a decision was made by agency lawyers to mark them as "deliberative" draft documents, thereby protecting them from disclosure via FOIA.

Leopold's article is a fascinating study of CIA deception, duplicity and retaliatory abuse. The only way the CIA could have made the aftermath of the Torture Report's release worse was to do all the things it actually did. It made false accusations against a Senate oversight committee. It made blatantly false claims about Senate staff and their "hacking." It stabbed its own Inspector General in the back, publicly impugning him and his findings. It performed an "internal investigation" that managed to "uncover" only the wrongdoing of others. The only act of contrition in this whole debacle went unperformed when CIA head John Brennan chose to toss his apology to the Senate in the nearest file cabinet. The CIA may have had a chance to salvage a small part of its reputation, but instead attempted to bluster its way back to respectability. And, in doing so, lost any respect it had remaining.

Filed Under: cia, configuration, constitutional crisis, dianne feinstein, google search, jason leopold, john brennan, senate, spying

CIA Accidentally Releases Apology Letter It Wrote, But Never Sent To The Senate For Illegally Spying On It

from the sorry-not-sorry dept

Jason Leopold -- terrorizer of FOIA staffers throughout the US government -- has again obtained documents many would have expected to remain out of reach for years to come. Certainly, the CIA thought one of the documents would remain its little secret for the rest of whatever.

On July 28, 2014, the CIA director wrote a letter to senators Dianne Feinstein and Saxby Chambliss — the chairwoman of the Senate Intelligence Committee (SSCI) and the panel's ranking Republican, respectively. In it, he admitted that the CIA's penetration of the computer network used by committee staffers reviewing the agency's torture program — a breach for which Feinstein and Chambliss had long demanded accountability — was improper and violated agreements the Intelligence Committee had made with the CIA.

The letter was never sent. Instead of an apology, the Senate received accusations of impropriety after the CIA threw out its Inspector General's report on the breach and performed an in-house "investigation" clearing the CIA of wrongdoing.

The letter was never signed by Brennan or sent. It was filed away somewhere in the CIA's archives, hopefully never to be seen again. But it was mistakenly handed over to Jason Leopold much to the CIA's chagrin. Additional chagrinment ensued.

After VICE News received the documents, the CIA contacted us and said Brennan's draft letter had been released by mistake. The agency asked that we refrain from posting it.

We declined the CIA's request.

So, the CIA has yet to officially admit any wrongdoing (as in a document -- such as the one it didn't want released -- entered into the public record), and yet, there's an admission of guilt in the public's hands. Makes it a bit harder to defend actions Senator Feinstein claimed violated pretty much everything that could be violated in a single act.

Feinstein wrote to Brennan on January 23, 2014 and told him she consulted with the Senate's legal counsel, who informed her that the CIA's search of the Senate's computer network "may have been inconsistent with the separation of powers principles embodied in the Constitution and essential to effective congressional oversight of intelligence activities."

"Second," her letter continued, "the search may have violated the Fourth Amendment, the Speech and Debate Clause of the Constitution, various statutes (including federal criminal statutes, such as the Computer Fraud and Abuse Act and Executive Order 12333," which says it's unlawful for the CIA to conduct domestic spying.

In short, it appears that while some in the CIA knew what it did was clearly wrong (and potentially illegal), top management so insisted on denying it, that it wouldn't even send an apology letter -- and that would have stayed completely secret if someone hadn't slipped up and handed over the unsigned letter accidentally in a FOIA response dump.

Filed Under: apology, cia, foia, jason leopold, senate, spying

Pentagon Offered 'FOIA Terrorist' Jason Leopold A Stack Of Documents To Just Shut Up And Go Away Forever

from the citing-exemption-'for-the-love-of-god-leave-us-alone'-[(b)404] dept

Jason Leopold has so thoroughly aggravated naturally-secretive government agencies that he has earned the nickname "FOIA terrorist." He routinely files two dozen FOIA requests a week, along with MDRs (Mandatory Declassification Reviews), which force the government to more closely examine documents it has previously withheld in full.

In the course of these activities, Leopold has also filed numerous FOIA lawsuits against government agencies for withholding documents, not performing thorough searches or exceeding the statutory time limits for responses.

Several government agencies hate him. One government agency hates him so much it offered him a one-time deal bordering on illegality.

In his testimony in front of the House Committee on Oversight and Government Reform, Leopold gave up both the agency and its questionable offer.

Leopold: The Office of Net Assessment (ONA) is the Pentagon’s in-house think tank. They spend millions and millions of dollars putting together reports — reports that they contract out about perhaps some futuristic warfare, or what the situation in the Middle East is going to look like with regards to oil. I asked for those reports. I filed a FOIA request; they refused to comply with my FOIA request. They said it was too broad. I narrowed it, they still said it was too broad. I sued them. Recently they said that ‘We’ll give you some documents as long as you promise to never file a FOIA request again and don’t have anyone else file a FOIA request on your behalf.’

Rep. Mark DeSaulnier (D-Calif.): How is that legal?

Leopold: I don’t know but they put this in writing and I’m really looking forward to the day when I write this story up.

This is what one agency was prepared to do just to keep Leopold out of its file cabinets.

But it's not just overt actions like these. It's the little things agencies do to frustrate FOIA requesters, especially journalists like Leopold who are looking for timely information rather than just information. In his testimony, Leopold points out that agencies routinely stonewall journalists in hopes of discouraging them from making further inquiries. If they can delay a release past the point of relevance, it's a PR win for them, especially if the information requested is less than flattering.

As you know, FOIA requires an agency to make a determination on releasing records within 20 business days. An extension of 10 business days is available in “unusual circumstances.” I have submitted thousands of FOIA requests to dozens of different agencies, and in my experience, fewer than one percent of my requests have been decided within the timeframe required by FOIA. My colleagues have had similar experiences.

I routinely experience delays of several years...

Case in point: Leopold's FOIA request for information related to incoming DOJ head Loretta Lynch.

My request to the Executive Office of the United States Attorneys for records about Loretta Lynch illustrates the problems that investigative journalists face in using FOIA. I submitted my request the day that Loretta Lynch’s nomination was announced by President Obama. I sought expedited processing because the records I was requesting relate to Lynch’s performance of her duties as United States Attorney for the Eastern District of New York. When the agency did not rule on my request for expedited processing within the time period allowed by FOIA, I immediately filed suit. The agency conceded that the topic of my request is a “matter of widespread and exceptional interest,” but insisted that it should not have to even begin releasing records for several months. My attorney filed several emergency motions requesting that the Department of Justice process my request and produce records before Lynch’s confirmation hearing, but the judge presiding over the case indicated that he would not have time to rule on the motions for more than a month.

After Lynch was confirmed, my request for expedited treatment became moot. To date, the agency has still not processed the documents I requested.

As he points out, this sort of behavior achieves exactly what the foot-dragging agencies hope it will: it discourages journalists from using FOIA requests in their news gathering. And every journalist persuaded to look elsewhere is one more chance to keep information out of the public's hands.

Then there are the loopholes. Some of these abused exemptions have been addressed by amendments to FOIA laws, but there are still plenty of exploitable areas.

Congress deliberately chose the words “records or information” when it amended Exemption 7 in 1974. Prior to that time, investigatory files compiled for law enforcement purposes were exempt. The problem was that agencies could simply place documents that they wanted to withhold from disclosure inside an investigatory file, and then treat the document as exempted simply because of its location. The 1974 amendment was designed to fix this problem by eliminating the blanket exemption for government records simply because they were found in investigatory files compiled for law enforcement purposes.

Notwithstanding Congress’s clear intention and the plain language of FOIA after the 1974 amendment, the FBI continues to withhold information where the record requested “is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. 552(b)(7)(A)” (emphasis added). I have received dozens of denial letters from the FBI based on this erroneous interpretation of FOIA, and the Department of Justice’s Office of Information Policy has affirmed the FBI’s decision in every administrative appeal I have filed. The FBI has not defended its position in court, but instead conducts a new review applying the proper standard once litigation has commenced. As a result, the issue becomes moot.

According to Leopold, the worst agencies to deal with in terms of FOIA requests are the usual suspects: the FBI, the DOJ and the US Southern Command. Thanks to Snowden's prompting of additional interest in the "intelligence community," the NSA has been added to that list.

The oversight committee has its eye on FOIA reform and the government could use a swift kick right in the exemptions. But whether or not a so-called "terrorist's" assertions about near-bribes and SOP stonewalling will push it in that direction remains to be seen.

Filed Under: defense department, foia, intimidation, jason leopold, transparency

Court Follows Shutdown Of Jason Leopold's Torture Report FOIA Request By Denying Same To ACLU

from the (b)5:-for-when-you-absolutely,-positively-have-to-hide-every-motherfuckin'-d dept

The ACLU is suing the CIA over its withholding of CIA Torture Report-related documents, including the so-called Panetta Review. The CIA, so far, has managed to withhold the requested documents in their entirety, citing multiple FOIA exemptions. The ACLU isn't taking no for an answer and has challenged the CIA's refusal to turn over any of the documents the ACLU has requested. But this effort has now been shut down by the DC District Court.

The decision starts by noting that if the SSCI report (Torture Report) had remained solely in the hands of the Senate, it would have been unobtainable via FOIA requests. The ACLU had argued that its transfer to the CIA has released it from this clearly delineated restriction. ("For purposes of FOIA, the definition of an “agency” specifically excludes Congress, legislative agencies, and other entities within the legislative branch.")

The court finds otherwise:

The Court’s inquiry, therefore, is a streamlined one: do there exist “sufficient indicia of congressional intent to control,” id., the Full SSCI Report? [...] Although this case is no slam dunk for the Government, the Court answers that question in the affirmative.

The decision quotes from a SSCI letter from 2009 referring to the still in-the-works Torture Report.

In its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation “remain congressional records in their entirety and disposition,” such that “control over these records, even after the completion of the Committee’s review,” would “lie[] exclusively with the Committee.” June 2, 2009, SSCI Letter, ¶ 6. Making its wishes even more explicit, it continued, “As such, these records are not CIA records under the Freedom of Information Act, or any other law.”

The ACLU pointed out that this letter from 2009 was both outdated and irrelevant to the issue at hand, as it only pertained to the use of documents shared with the Senate by the CIA, rather than the resulting report. The court disagrees, stating that the language in the 2009 letter is broad enough to cover the finished product, rather than just the documents contributing to it. But it also points out the CIA's arguments in defense of its secrecy are also inconsistent.

One final point bears mention. Defendants’ own characterizations of the scope of the letter vary somewhat in their submissions. Compare, e.g., Higgins Decl., ¶ 12 (“One key principle necessary to this inter-branch accommodation . . . was that the materials created by SSCI personnel on [the] segregated shared drive would not become ‘agency records’ even if those documents were stored on a CIA computer system or at a CIA facility.”) (emphasis added), with Def. Reply at 5 (explaining that the language of the June 2009 letter “covers the Full Report” as a “final . . . report[] or other material[] generated by Committee staff or members,” even though it did not reside on the network drive).

The ACLU also argued that Dianne Feinstein's letter from 2010 is a better indicator of whether or not the report and its supporting documents are FOIA-able.

As its pièce de résistance, the ACLU seizes on the December 10, 2014, transmittal letter from Senator Feinstein, claiming it represents “direct evidence of the SSCI’s intentions for the Final Full Report.” Id. That letter, to recap, states:

"[T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve this result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit." December 10, 2014, Feinstein Letter.

“By encouraging the use and dissemination of the Final Full Report among the executive branch, and by leaving to the executive branch the decision as to how ‘broadly’ the report should be used within the agencies,” claims Plaintiff, “SSCI relinquished its control over the document.”

The court rebuts this argument as well. Rejecting the ACLU's "refinement" of the entirety of SSCI-related communication between the Senate and the CIA to a single letter, the court declares that Feinstein's instructions must be considered in context.

The Court, therefore, need not confine its consideration to the moment of transmission. On the contrary, SSCI’s 2009 letter sets the appropriate backdrop against which Senator Feinstein’s 2014 letter can be properly understood.

So teed up, her letter does not evince congressional intent to surrender substantial control over the Full SSCI Report. While it does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless. Most significantly, the dissemination authorized by the letter is limited to the Executive Branch alone. It plainly does not purport to authorize the agencies to dispose of the Report as they wish – e.g., to the public at large.

The court also adds that Feinstein's statement accompanying the public release of the report summary further declares the documents off-limits -- at least until further notice.

SSCI’s deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff’s theory that Congress intended to relinquish control over the document only days later.

It finds similarly for the "Panetta Report" documents, citing its rejection of Jason Leopold's FOIA request. The CIA continues to assert that these documents are "deliberative" in nature and out of the reach of FOIA requests, despite the fact that what's being deliberated has already been made public (in the summary report) and handed over to the executive and legislative branches (via the full report). The court upheld the CIA's exemption (b)5 declaration, stating that it doesn't matter whether or not portions of the sought documents are in the public domain, but rather that the documents are part of an agency's "deliberative process." (This is why exemption (b)5 is the most-abused FOIA exemption.)

As it had already shot down Leopold's request, the court finds no reason to alter its course, despite some "novel" arguments advanced by the ACLU -- including quoting Sen. Udall's assertion that the Panetta Review is a complete work of critical importance (a "smoking gun") that far exceeds the CIA's portrayal of it as an unfinished pile of somewhat related deliberative works-in-progress. The CIA's motion to dismiss is granted.

With this decision (and many preceding it), government agencies are being given even more reason to declare anything they don't want released "deliberative" and trust the courts to uphold their declarations.

Filed Under: cia, cia torture report, foia, jason leopold, panetta review, secrecy, transparency
Companies: aclu

Clinton Email Case Gets Nutty: Clinton Offers Faux Support For Faster Release... That She Could Have Done Herself

from the let's-try-this-again dept

The whole saga over Hillary Clinton's emails is getting more and more bizarre. Last night, FOIA ninja (it beats the "FOIA terrorist" label some have given him), Jason Leopold revealed that in his FOIA lawsuit over the release of the emails, the State Department was claiming that it would take at least until January of 2016 to release the piles and piles of emails that Clinton gave them... in printed form. (In case you were living under a rock, Clinton used her own personal email server while Secretary of State, and only just recently handed over copies of the emails to the State Department -- after her own staff vetted them -- and then nuked the entire server).

The State Department went into great detail [pdf] explaining why it's going to take so damn long. In large part, it's because Clinton handed them all over in printed form, rather than digital form, and the State Department had to staff up just to go through all the emails.

As noted above, the Department received the 55,000 pages in paper form. The documents were provided in twelve bankers’ boxes (approximately 24” x 15” x 10 ¼” in size) with labels placed on the outside of the boxes that corresponded approximately to the timeframe of the documents within a given box. The Department initially performed tasks necessary to organize the records. This included foldering, boxing, and creating a box level inventory of the records. In consultation with the National Archives and Records Administration, the Department also conducted a page-by-page review of the documents to identify, designate, mark, and inventory entirely personal correspondence, i.e., those documents that are not federal records, included within the 55,000 pages.

Given the breadth and importance of the many foreign policy issues on which the Secretary of State and the Department work, the review of these materials will likely require consultation with a broad range of subject matter experts within the Department and other agencies, as well as potentially with foreign governments. These records are comprised of communications to or from the former Secretary of State, who was responsible for the overall direction and supervision of the full range of activities of the Department, which operates in approximately 285 locations around the globe. The Department is committed to processing the 55,000 pages as expeditiously as possible, while taking into consideration the Department’s other legal obligations.

The Department has taken multiple steps to facilitate its review of the 55,000 pages. It has developed an approach for addressing the review, upgraded the capabilities of the Department’s processing software, and dedicated staff. Currently, this project is staffed fulltime by a project manager and two case analysts, as well as nine FOIA reviewers who devote the entirety of their time at the State Department to this effort, plus other analysts and information technology specialists who provide collateral assistance to this review in addition to their regular duties. The team managing this project has met daily since early April to implement and oversee this large undertaking.

Each page of the 55,000 must be individually hand-processed in order to ensure that all information is being captured in the scanning process. The scanning process itself involves five steps that are time-consuming and labor-intensive. These are: (1) scanning (inserting barcode separator sheets between each document and its associated attachments and then scanning the documents, which includes converting them for optical character recognition [“OCR”], and then inputting the resulting OCR-ed files into the system in batches based on search segments); (2) scanning quality control (the scanned material is checked to ensure that each document is scanned properly and to flag documents that need to be re-scanned); (3) indexing (indexers review each scanned document to manually input bibliographic coding, such as the “To,” “From,” “CC,” “BCC,” “Date Sent,” and “Subject” fields associated with that document into the system); (4) indexing quality control (a senior indexer reviews the indexed documents to ensure that the bibliographic coding has been properly input into the system); and, (5) duplicate detection resolution (the computer analyzes the indexed documents to identify possible duplicates between the document being ingested and those documents that already exist in the system). Any possible duplicates that cannot be resolved (identified as an exact duplicate, near duplicate, not a duplicate) by automated means are pushed forward for individual review for manual adjudication. This process was made even more complicated by the fact that some, but not all, of the paper records that the Department received were double-sided. It took the Department five weeks to perform the scanning process, which was completed recently in May. There will be further work required to load these into a searchable database, which will be completed by mid-June.

When asked about it by reporters this morning, Clinton gave a really ridiculous answer, urging the State Department to speed up the work of releasing the emails, saying that she wanted them released:

“I have said repeatedly: I want those emails out. Nobody has a bigger interest in getting them released than I do,” she told reporters at a campaign stop in Iowa in a rare question-and-answer session. “...[A]nything that [the State Department] might do to expedite that process, I heartily support.”

You know what would have expedited the release? First, using the State Department's own email system while you were Secretary of State, so this wouldn't have even been an issue. And, second, when all of this became an issue handing over the emails in electronic form, rather than in printed form in a bunch of boxes.

Meanwhile, the judge in the case, Judge Rudolph Contreras, is not impressed. This morning he issued a minute order telling the State Department that waiting until January of next year was unacceptable, and ordering the State Department to set a renewed schedule with rolling releases every 60 days:

As stated on the record at today's status conference, Defendant shall file a notice to the Court on or before May 26, 2015, that includes the following: (1) a new production schedule for the Secretary Clinton e-mails that accounts for rolling production and updates from counsel every 60 days, (2) a proposed deadline for production of the Secretary Clinton e-mails relating to Benghazi, and (3) a proposed order that encapsulates the parties' agreement on the narrowing of Plaintiff's request concerning searches for records beyond the Secretary Clinton e-mails. SO ORDERED. Signed by Judge Rudolph Contreras

In the end, there may turn out to be nothing much of interest in all of those emails (though, of course, the fact that Clinton's own staff went through them and got rid of a bunch first will keep conspiracy theorists in business for ages), but the way that Clinton has handled this whole thing is really ridiculous. Who the hell thinks it's a good idea to print out 55,000 pages of records that were original electronic unless you're trying to hide stuff and make life difficult for those going through it?

Filed Under: clinton email, email, foia, hillary clinton, jason leopold, print outs, state department

Judge Shoots Down 'FOIA Terrorist' Jason Leopold; Says 'Panetta Review' Documents Can Be Withheld In Full

from the whatever-the-CIA-said-about-torturing-folks-is-between-the-CIA-and-the-CIA dept

DC District Court judge James E. Boasberg has ruled the CIA can continue to withhold the "Panetta Review" documents in full, thanks to widely-abused FOIA exemption b(5). (via Unredacted)

District Court Judge James Boasberg ruled against a journalist on Tuesday who had tried to uncover the classified documents — known as the Panetta Review, because they was completed under orders from former agency Director Leon Panetta — under the Freedom of Information Act (FOIA).

The CIA had used “sound” reasoning in keeping the documents secret, Boasberg decided in a 19-page judgment, preventing it from making its way to the public.

The journalist in question is every secretive agency's side-thorn, Jason Leopold, who sued the CIA one day after it passed the response deadline. And now this attempt to pry more torture-related documents out of the CIA's hands has hit a dead end. Judge Boasberg agreed that the overbroad exemptions cited are (unsurprisingly) broad enough to cover the CIA's assertion that the 40 memos comprising the Panetta Review must be withheld in full.

In the end, requiring disclosure of the Reviews would cause the sort of harm that the deliberative-process privilege was designed to prevent – i.e., inhibiting frank and open communications among agency personnel… Had the SRT known that the Reviews could become public, its members would likely have been tempted to highlight only the information that would paint the agency’s prior actions in a positive light and to avoid calling attention to information that could have embarrassed the agency or its officials. Protecting the agency’s withholdings in this case is thus consistent with the purposes of this exemption…

The Court, in sum, concludes that the Reviews are properly withheld under Exemption 5’s deliberative-process privilege. It further agrees that they may be withheld in full. While FOIA requires agencies to release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), it is clear that there are no such portions here. As the agency attests, and as the preceding discussion makes clear, “[t]he entire documents are pre-decisional, deliberative drafts . . . .” Lutz Decl., ¶ 26. Because “the selection of which facts to include [wa]s part and parcel of the deliberative assessment,” no portions can be severed without exposing the deliberative process itself.

Two interesting things to note about the Panetta Review and this particular case.

First, the CIA seems to be bolstering its FOIA exemption b(5) claims by designating documents as "draft" or "deliberative," no matter what their actual purpose is. In its supporting declaration filed in this lawsuit, it deployed circular reasoning declaring drafts and deliberative documents are drafts and deliberative documents because they are clearly marked as such by the CIA.

In a court filing last month as part of a Freedom of Information Act lawsuit, a C.I.A. officer said that the review had been stopped abruptly in 2010, had not covered all of the documents the agency had given to the committee and “had not been formally reviewed or relied upon by the C.I.A.’s senior leadership.”

“Each document is stamped ‘DELIBERATIVE PROCESS PRIVILEGED DOCUMENT’ at the top of every page, and most of the documents are marked ‘DRAFT’ on every page as well,” wrote the C.I.A. officer, Martha M. Lutz.

The CIA's internal document designations seem to bear some resemblance to the NYPD's use of its "SECRET" stamp -- which is deployed arbitrarily and without oversight to declare certain documents out of the reach of Freedom of Information Law (FOIL) requests. If the CIA feels exemption b(5) gives it the best chance to keep documents out of the hands of journalists like Jason Leopold. it can slap these designations on as many papers as possible and mention its predetermination in FOIA lawsuit declarations.

Second, Boasberg's refusal to challenge even a single exemption assertion by the CIA isn't particularly good news, considering his recent appointment to the FISA court. While he has pushed back on government secrecy in the past, he's also been just as likely to grant its wishes. Considering he's replacing FISA Judge Reggie Walton -- one of the few FISA judges to openly question surveillance tactics and hold the NSA accountable for its abuses -- this latest decision seems to indicate his appointment is a downgrade in terms of government accountability.

Filed Under: b(5), b5, cia, foia, james boasberg, jason leopold, panetta review, redactions

Will Senator Burr's Attempt To Bury CIA Torture Report Actually Make It More Likely The Report Leaks?

from the action,-reaction dept

We already wrote about how Senator Richard Burr has demanded that the White House return all copies of the full, unredacted CIA Torture Report, which Senator Dianne Feinstein distributed to various department heads last month. As we noted in our article, this seemed like an effort to stuff the full report down the memory hole to make sure that no one could ever do anything with it at all and to make it more difficult to access in a series of FOIA lawsuits. Those lawsuits are demanding the report, as well as the internal Panetta Review that is supposedly the smoking gun, involving an internal CIA analysis that mostly agrees with the Senate Intelligence Committee's analysis in the full report.

Reporter Jason Leopold of Vice News (and one of the people suing the government, under FOIA, for the documents) has some more details about Burr's action, including a copies of the letter [pdf] Burr sent the White House, and the letter that Feinstein sent in reply. As Leopold notes, Burr's decision seems specifically designed to try to do a legal two-step to make the document immune from FOIA lawsuits:

By advising the White House to cease entering the full torture report into an executive branch system of records, Burr is saying that the document is a "congressional record," which is exempt from FOIA, as opposed to an "agency record," which is subject to the provisions of the law.

Feinstein's response shows that she disagrees, and that the report can properly be handed over to the Executive Branch. The reason for the letter, obviously, is for it to be used in killing off the FOIA attempts, and the DOJ wasted no time in making just that argument:

Tonight, the government filed a response in our long-running lawsuit and asked a judge to dismiss our case. A CIA lawyer said in a 31-page declaration that the redactions in the executive summary were justified and the Panetta Review is properly classified and should not be released. The government also responded to the ACLU's FOIA lawsuit for the full torture report. The government said the full torture report is not an agency record subject to FOIA, it is a congressional record. The government cited Burr's letter to support its case.

You can see that filing here [pdf], with this being the relevant portion:

Congress retains control over the Full Report for at least five reasons. First, the conditions under which the report was created reflect that SSCI as a whole asserted complete control over not only drafts, but also the final product. Second, throughout the years-long process of creating and finalizing the Report, both SSCI and the CIA handled the Report in accordance with SSCI’s instructions and strict limitations on access. Third, SSCI voted, in accordance with Senate Rules, to seek declassification and release only of the Executive Summary, Findings and Conclusions – not the Full Report. The then-SSCI Chairman’s decision to provide the Full Report to certain Executive Branch agencies for nonpublic use does not amount to a Committee decision to seek to declassify and release the Full Report. Fourth, the current Chairman of SSCI has reiterated SSCI’s intent to retain control of the Full Report. Finally, the defendant agencies have treated the Full Report, received in December 2014, as a congressional record, sequestering it in secure storage space appropriate to its classification and carefully limiting its dissemination and use. Because the Full Report remains a congressional record as opposed to an agency record, this Court lacks jurisdiction over plaintiffs’ FOIA claim seeking its release, and plaintiffs’ claim should be dismissed under Rule 12(h)(3) or 12(b)(1).2

This is not all that unexpected, even if it's fairly ridiculous. However, it's possible that the whole thing could backfire badly. Feinstein knew what she was doing in distributing the report to a number of people within the administration. While all of whom have access to it have the proper clearance, at least some have to agree that this report is an important historical document, detailing incredible misdeeds by the CIA -- and some of them may view it as important to have that information shared with the public to make sure such events never happen again.

Senator Burr's rather obvious move here to demand all copies be "returned" is seen by many as an attempt to bury the report entirely. As Senator Ron Wyden points out, returning the report would "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record." Given that, it seems more likely that at least someone with access to the document is going to realize that this important review of history is at risk of being shredded. Hopefully there is someone in the government with the courage to stand up and get a copy out to reporters in some manner or another, before Burr has a chance to succeed in wiping it off the face of the earth.

Filed Under: cia, cia torture report, congress, dianne feinstein, doj, foia, jason leopold, leaks, richard burr, senate, senate intelligence committee, whistleblowing