Foreign Intelligence Surveillance Court November 18 2020 Opinion, Authorized for Public Release on April 26, 2021
Key Takeaways From Latest FISA Court Opinion on Section 702 and FBI Warrantless Queries, Jake Laperruque, Just Security, 28 April 2021
RELEASE OF DOCUMENTS RELATED TO THE 2020 FISA SECTION 702 CERTIFICATIONS, Office of the Director of National Intelligence (ODNI) 26 April 2021
The Public Should Have Access to the Surveillance Court’s Opinions Charlie Hogle, Alex Abdo , An ACLU petition is asking the Supreme Court to order the FISC to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security. The petition—filed by ACLU lawyers, former Solicitor General Ted Olson, the Knight First Amendment Institute at Columbia University, and the Media Freedom and Information Access Clinic at Yale University—argues that the First Amendment gives the public a presumptive right of access to significant judicial opinions, including those of the FISC.
Financial Accounts May Be “Modified”to Shield Classified Programs, Steven Aftergood, Secrecy News, 15 Aug 2018 — Federal agencies will be permitted to publish financial statements that are altered so as to protect information on classified spending from disclosure. Under the new policy, developed by the government’s Federal Accounting Standards Advisory Board (FASAB) in response to concerns raised by the Department of Defense and others, in order to prevent disclosure of classified information in a public financial statement, agencies may amend or obscure certain spending information –“if the effect of the modification does not change the net results of operations or net position.” [Emphasis added]
As Aftergood notes, however, agencies may also shift accounts around in a potentially misleading way. “A component reporting entity is allowed to be excluded from one reporting entity and consolidated into another reporting entity. The effect of the modifications may change the net results of operations and/or net position.” See Statement of Federal Financial Accounting Standards 56, FASAB, July 5, 2018 (final draft for sponsor review). [Emphasis added]
But in a sharply dissenting view, the Pentagon’s Office of Inspector General said the new approach was improper, unwise and unnecessary. … The Kearney & Company accounting firm also objected, saying that it would be better to classify certain financial statements or redact classified spending than to misrepresent published information.
Last month, the FASAB issued a separate classified “Interpretation” of the new standard that addressed the policy’s implementation in detail.
Curiously, Assistant Director Monica R. Valentine told Aftergood, “This is the first time we’ve had to deal with this sort of issue.”
Senate Intel Wants To Follow The Money In The Russia Probe. But Treasury Isn’t Making That Easy, Emma Loop and Jason Leopold, BuzzFeed, 14 Aug 2018 — Last year, staff inside Treasury’s Financial Crimes Enforcement Network questioned whether the department was deliberately trying to stymie the Senate’s investigation…of Russia’s interference in the 2016 election. The Senate Intelligence Committee has spent more than a year trying to follow the money. But its efforts, unparalleled on Capitol Hill, have been hampered by a surprising force: the US Treasury Department, which has delayed turning over crucial financial records and refused to provide an expert to help make sense of the complex money trail.
Last year, Treasury rejected the committee’s request for help from one of its experts, even as Treasury officials have speculated — behind closed doors — that the Senate committee would not be able to follow the twisting financial trail laid out in the documents they had turned over, a path that often passes through offshore shell companies or untraceable cash transactions.
Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too [from the it’s-a-court,-not-a-wing-of-the-NSA dept], Tim Cushing, Techdirt, 10 Aug 2018 — The court system belongs to the people. That’s what a “presumption of openness” means. It’s a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public. The Director of National Intelligence — nodding towards transparency in a mostly self-serving way — has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven’t come from this hesitant step towards transparency. They’ve been forced out the government’s hands by numerous FOIA lawsuits.
Access to court documents shouldn’t have to be litigated, even in the FISA court. That’s the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.
“This is about the administration listening to employers who don’t want workers and the public to know about dangerous conditions,” said Debbie Berkowitz, a former OSHA official who worked on the original rule. The new data, she said, would help officials better understand why workers are getting injured on the job and how to protect them, adding that the agency could easily redact any sensitive information before posting the records publicly.”
Editor’s note: The United States Justice Department is adding a highly contested citizenship question into the 2020 Census, which will likely lead to an undercount in places with undocumented workers and families. The political and social consequences of such an undercount in vulnerable communities would be significant and—as CityLab’s visual storyteller Ariel Aberg-Riger reports—an all-too-familiar story.
New Money, Old Secrecy: Pentagon Keeps Troop, Budget Data Tight, Roxana Tiron, Bloomberg Government, June 5, 2018 —The Pentagon will be the beneficiary of a big cash infusion as lawmakers divvy up the spoils from a spring congressional funding accord. Yet more money hasn’t meant more transparency in how it’ll be spent, and lawmakers overseeing the defense budget have aided some of the secrecy.
Critics worry that open discussion of the defense budget—which makes up more than half of funds allocated each year in the appropriations process—may be waning. They cite hearings on the defense policy bill and Pentagon funding that were closed to the public, as well as the continued opacity of the Overseas Contingency Operations fund, an accounting device created to track Iraq and Afghanistan war monies that has been increasingly relied on to pay the Pentagon’s day-to-day expenses.
NASA Climate Research Program Cancelled, Sabin Center for Climate Change Law, 9 May 2018 — Science reported that the National Aeronautics and Space Administration (NASA) had cancelled a $10 million-a-year research program aimed at improving carbon monitoring. According to the report in Science:“Many of the 65 projects supported by the CMS since 2010 focused on understanding the carbon locked up in forests . . .
The CMS improved other carbon monitoring as well. It supported efforts by the city of Providence to combine multiple data sources into a picture of its greenhouse gas emissions, and identify ways to reduce them. It has tracked the dissolved carbon in the Mississippi River as it flows out into the ocean. And it has paid for researchers . . . to refine their satellite-based observations of methane.”
According to a spokesperson for NASA, existing grants issued through the CMS will be allowed to finish up, but no new research will be funded. This is reportedly due to “budget constraints and higher priorities within the science budget.”
Interior agency blocks group of archaeologists from attending scientific conference, Dino Grandoni, Washington Post, 3 May 2018 — The Bureau of Land Management blocked at least 14 of its staff archaeologists and other specialists from attending a major scientific conference this year, at a time when archeological sites have become a flashpoint in the debate over public lands protection. Officials at BLM’s headquarters in Washington only authorized the attendance of three archaeologists, citing “the potential travel and other costs” of the trips.
“The decision was made after reviewing the conference topics and agenda, and we sent the people who could best represent the BLM,” BLM spokeswoman Amber Cargile told The Washington Post. “We value our professional relationship with SAA and the important role our archaeologists play in the Bureau’s multiple use mission.”
The archaeologists from BLM were scheduled to give a presentation at a symposium titled “Tough Issues in Land Management Archaeology,” which ultimately had to be cancelled due to the lack of participation of government scientists.
NFOIC requests Google disable Gmail “self-destructing” feature for government communiqués, 4 May 2018 — The National Freedom of Information Coalition (NFOIC) has contacted Google about Gmail’s new “self-destructing” email feature. The feature could allow government employees to delete public records subject to federal, and state open government and Freedom of Information laws.In an open letter to Google CEO Sundar Pichai, NFOIC board president Mal Leary cited that most states have clear record retention laws aimed at making sure public records, electronic and otherwise, such as official correspondence between public officials are secured and maintained. See also Government email with the ability to disable itself — or any use of its contents? What’s to worry about?
Judge Sends GSA FOIA Staff Back to Work on Trump Hotel Docs, Charles Clark, Government Executive, 4 May 2018 — A federal district judge on Thursday faulted the General Services Administration for inadequately responding to a Freedom of Information Act request.Judge Beryl Howell, chief of the U.S. District Court for the District of Columbia, ruled in the case brought by the nonprofit transparency group American Oversight that GSA, though it had delivered thousands of emails from the Trump transition team, had not “adequately supported” its decisions to redact some documents and withhold some email attachments in the name of privacy.
Zinke grilled about edited science report, Elizabeth Shogren, Reveal, 12 Apr 2018 — House Democrats grilled Interior Secretary Ryan Zinke this week about National Park Service officials deleting all references to the human cause of climate change in drafts of a long-awaited report. Zinke told a House Appropriations subcommittee on Wednesday that he and other political appointees at the Interior Department, which oversees the Park Service, have not seen the draft. He said the drafts were obtained through a public records request to a university and that he wants an investigation into how the media reviewed the drafts before he did.
Hoffman, a career Park Service manager, is listed as an author of the report. However, Caffrey told Hoffman that the university advised her not to accept any changes, and that her contract with the Park Service establishes that the report is her intellectual property.
At the hearing, Zinke repeated a vow that he will not censor scientific reports.
Interior Secretary Zinke testified at a Senate committee hearing last month that the Interior Department has not changed any scientific documents.
“There is no incident, no incident at all that I know that we ever changed a comma on a document itself. And I challenge you, any member, to find a document that we’ve actually changed on a report.”
NARA Unauthorized Destruction Chart Highlights Troubling Pattern of Disappearing Records and Encrypted Messaging Apps: FRINFORMSUM, Lauren Harper, 29 Mar 2018 — This week the U.S. National Archives published its first “unauthorized disposition of federal records” chart. The chart – which includes both open and closed cases and will be updated monthly – catalogs all of the cases NARA investigated in Fiscal Year 2017 concerning the “actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records.” The chart includes NARA’s correspondences with the agencies when available.
A quick look shows that the departments of State, Interior, Agriculture, and Justice were the most frequently investigated agencies, and that disappearing records and encrypted messaging applications were a common theme.
CIA argued torture sessions were actually business meetings so it could destroy videotapes, Joshua Eaton, Think Progress, 20 Mar 2018 — New documents released by the CIA, in response to a Freedom of Information Act lawsuit by Douglas Cox, a law professor at the City University of New York, show that—in a May 12, 2016 letter to NARA— the agency argued that it did not need to preserve videotapes of its “enhanced interrogations” — torture sessions with suspects that involved methods like wall slams, confinement boxes, and waterboarding — because they were like formal government meetings, and therefore less stringent guidelines applied when it came to preserving records of such a “meeting;” therefore, that it was justified in destroying the tapes of torture sessions because it preserved cables and transcripts that, in its own judgement, accurately depicted what was on the tapes.
“[W]e disagree that an ‘interrogation’ would qualify as a ‘meeting,’” Lawrence Brewer (NARA’s chief records officer) responded.
US Air Force orders freeze on public outreach, Valerie Insinna , David B. Larter , and Aaron Mehta, Defense News, 13 Mar 2018 — According to several stories in Defense News, communications with the public and the press are being actively discouraged. A March 13 story notes that he U.S. Air Force is slashing access to media embeds, base visits and interviews as it seeks to put the entire public affairs apparatus through retraining — a move it says is necessary for operational security, but one which could lead to a broader freeze in how the service interacts with the public. As Steve Aftergood notes, the new Air Force guidance does not distinguish between classified and unclassified information. Nor does it define the scope of “sensitive operational information” which must be protected. According to Defense News, though, before settling on retraining its public affairs corps and commanders, the service considered an even more drastic step: shutting down all engagement with the press for a 120-day period, a source with knowledge of the discussions said.
“As it happens,” Secrecy News notes, “a counter-argument in favor of enhanced Air Force release of information was made just last week by Air Force Secretary Heather Wilson.” The Public Affairs Management, Air Force Policy Directive 35-1, March 8, 2018, which notes in bold “COMPLIANCE WITH THIS PUBLICATION IS MANDATORY, states: “The Air Force has an obligation to communicate with the American public, including Airmen and families, and it is in the national interest to communicate with the international public. Through the responsive release of accurate information and imagery to domestic and international audiences, public affairs puts operational actions in context, informs perceptions about Air Force operations, helps undermine adversarial propaganda efforts and contributes to the achievement of national, strategic and operational objectives. This directive establishes the framework for Air Force public affairs operations.”
Both are under Air Force Secretary Heather Wilson’s signature. Right hand meet left hand?
The Trump Appointee Behind the Move to Add a Citizenship Question to the Census: The initial author of a key Justice Department letter wasn’t revealed — until today, Justin Elliott, ProPublica, 7 Mar 2018 — Emails obtained by ProPublica in response to a Freedom of Information Act request provide an answer to the question of who was actually driving the policy change. The letter, signed by a career staffer in a division of the DOJ whose main function is handling budget and procurement matters, was actually drafted by a Trump political appointee, John Gore, who is best known for his work defending Republican redistricting efforts around the country. As the acting head of the DOJ’s Civil Rights Division, he drafted the original November 2017 letter to the Census Bureau, the emails show. In one email, Arthur Gary, the career official who signed the letter, noted that it was sent “at the request of leadership, working with John.”
In June 2017, Gore wrote a filing changing the DOJ’s position in litigation challenging Texas’ voter ID law. The Obama-era DOJ had pursued litigation claiming that the Texas statute intentionally discriminated against minority voters; the Trump administration then withdrew the claim.
Salary data about federal employees is being hidden. Congress is not pleased, Kate Irby, McClatchy DC Bureau, 7 Mar 2018 — Open the Books, a government watchdog group, has for the past 11 years sought the names, titles, agencies, salaries and bonus information for all federal employees, and has received much of the data it sought. It then has posted the information publicly. This year, it was denied salary information on more than 250,000 employees. While the government traditionally hides some employee information — about 3,500 positions in the 2016 request — the new redactions represent one out of every eight federal employees. The Department of Homeland Security, the Department of Justice and the Department of the Treasury had the most redactions, at about 138,000, 75,000 and 19,000, respectively. Other agencies with many missing salaries include the Department of Veterans Affairs, the Department of the Interior and OPM itself.
Rep. Trey Gowdy, R-S.C., House Oversight and Government Reform Committee chairman, as well as several subcommittee chairs, sent a letter this week to OPM Acting Director Kathleen McGettigan demanding information on the withheld data.
New Ruling Shows How Few Options There Are for Intelligence Community Whistleblowers, Irvin McCullough, Just Security, 5 Mar 2018 —Last week, a federal judge dismissed a complaint by a CIA whistleblower (and spy), who goes by the pseudonym James Pars. Pars’ case wasn’t so much about his whistleblowing disclosure—basically a complaint about his work place conditions—as it was about the procedures Inspectors General (IGs) must follow when investigating whistleblower retaliation. Specifically, who can hold the watchdogs accountable if they mishandle a whistleblower’s case? Can the whistleblower take the watchdog to court? Presidential Policy Directive-19 (PPD-19) governs how IGs handle whistleblower cases; it was written to contain whistleblowing within the Intelligence Community—there is no judicial review permitted either by the directive or the statutes codifying the directive. Moreover, as the presidential directive is not grounded in a congressional statute, there is no right of private action under the Administrative Procedure Act (APA).
“comes back to age-old issues around declassification authority and third-agency referrals. … And, bringing them here makes it much easier to address long-standing challenges such as certain topics that cut across more than one Administration.”
See https://www.govinfowatch.net/2018/03/05/consolidating-classified-presidential-records-in-dc-to-address-age-old-issues-around-declassification-authority-and-third-agency-referrals/ for more discussion.
Senator Richard M. Burr of North Carolina, the committee’s Republican chairman, and Senator Mark Warner of Virginia, the top Democrat, were so perturbed by the leak that they demanded a rare meeting with Speaker Paul D. Ryan last month to inform him of their findings. They used the meeting to raise broader concerns about the direction of the House Intelligence Committee under its chairman, Representative Devin Nunes of California, according to two congressional officials.
How government data is at risk Chase Gunter, Federal Computer Week (FCW) 27 Feb 2018 — …Denice Ross, a former Presidential Innovation Fellow, said officials can set up “bureaucratic barriers” — such as increased involvement of communications teams or requiring the added step of making a FOIA request before sending data out. She also noted there are ways to “slow walk” data releases — such as saying more approval is needed before releasing or even by changing the data schema or aggregating data dumps so they’re more difficult to use.
Feds’ case against alleged NSA hoarder hits turbulence, Josh Gerstein, Under the Radar/Politico, 26 Feb 2018 — Harold Martin was arrested in 2016 after an FBI search turned up a massive trove of sensitive data he allegedly removed during two decades of work for several different intelligence agencies. Authorities said they seized more than 50 terabytes of electronic information from the computer specialist’s Glen Burnie home, along with a massive quantity of paper documents—some of them classified up to the “Top Secret” codeword level.
U.S. District Court Judge Marvin Garbis suggested in a Feb. 16 order that the sheer volume of information may be a problem for prosecutors because their case is based on 20 felony charges that Martin illegally retained individual classified documents without permission. “Of course, the Government must prove that Martin possessed Document A without authority. … Assuming the Government will prove that Document A was included within a pile of documents and that Martin knew he possessed the pile, must he have known that the pile includes that specific document?” asked Garbis. “And, what must the Government prove that Martin knew about the contents of Document A, i.e., whether it contained national defense information?” In any event, as Stephen Vladeck noted, “The reality is the Espionage Act is remarkably capacious, and I don’t think this going to end well for Mr. Martin.”
White House Quietly Releases Report Highlighting Benefits of Regulations Charles S. Clark, Government Executive, 26 Feb 2018 — The draft report from the Office of Management and Budget—required annually under the 2000 Regulatory Right to Know Act—estimated annual monetized benefits of major federal regulations from Oct. 1, 2006, to Sept. 30, 2016, in the aggregate to be between $219 billion and $695 billion. In contrast, the estimated annual costs are in the aggregate between $59 billion and $88 billion (reported in 2001 dollars). Cautioning that the estimates are rough and vary by agency, the report restated the balance favoring benefits over costs in 2015 dollars, putting benefits at between $287 billion and $911 billion, and costs between $78 billion and $115 billion.
Federal Watchdog Identifies New Workplace Safety Problems at Los Alamos Rebecca Moss, The Santa Fe New Mexican & ProPublica, 26 Feb 2018 — The New Mexico lab’s failure to adequately track beryllium — small amounts of which can cause lung disease and cancer — violates federal regulations put in place to prevent worker overexposure, according to a report last week from the Department of Energy’s inspector general.
GOP Law Enforcement Chiefs Invited Donors To Help Set Policy Via Secret Bulletin Board, Andrew Perez and Lee Fang, MapLight & The Intercept, 12 Feb 2018 — An association of top Republican law enforcement officials—the Republican Attorneys General Association, or RAGA—has created a secret online bulletin board called the “Briefing Room” that’s allowing big donors to help shape legal policy. The RAGA frequently directs officials working for GOP attorneys general to review files posted on the file-sharing website before participating in conference calls hosted by RAGA’s nonprofit policy arm, the Rule of Law Defense Fund, or RLDF.
The Briefing Room is hosted by RLDF on the virtual cloud website box.com. While communications between elected officials and RAGA and RLDF should be subject to disclosure under open records laws, the secret bulletin board can shield the correspondence from public reach. Republican law enforcement officials in more than a dozen states denied having records of the bulletin board or argued that documents kept on the Briefing Room shouldn’t be made public. Nine offices said they have no records of communications with RAGA or RLDF.
Zinke grants industry wish list while shutting out the public, Scott Lake, opinion contributor, The Hill, 21 Feb 2018 — The Department of the Interior, under Secretary Ryan Zinke, wants to stop the public from “interfering” with its ongoing efforts to hand control of America’s public lands over to commercial and industrial interests. According to a report finalized in September and leaked to the Washington Post last week [see next story], the department plans to eviscerate/”streamline” the National Environmental Policy Act (NEPA)— by permitting and, in some cases requiring, the Bureau of Land Management to rubber-stamp actions like oil and gas leasing, livestock grazing, logging, mining, and large-scale deforestation, all without considering environmental consequences or public opinion—and explore other ways of clamping down on public involvement. Under NEPA, federal agencies must consider a full range of alternatives, including environmentally preferable ones. The agencies must also provide opportunities for public input, and then meaningfully respond to any input they receive.
Zinke’s plans include weakening the Freedom of Information Act (FOIA) and the Equal Access to Justice Act (EAJA). Interior’s recommendations would amend FOIA to “limit the number of … requests from any one group” and require “more stringent justification for fee waivers.” Regional and community-based watchdog groups, many of which can’t afford to buy access to public records, depend on FOIA’s fee waiver provisions. EAJA, meanwhile, allows plaintiffs to recover the costs of litigation in cases where the government is found to have broken the law. Under Zinke’s plan, EAJA would be amended to allow the government to recover costs and fees from public-interest litigants. Together, the proposed changes to FOIA and EAJA would render public oversight of land management decisions prohibitively expensive, while hiding important planning information — including records of any deals with industry — from public view.
Trump administration plan would roll back environmental reviews covering use of public lands, Juliet Eilperin and Michael Laris, Washington Post, 8 Feb 2018 — The Interior Department’s Bureau of Land Management has finalized a set of recommendations that would overhaul the way it permits energy exploration and other activities on public land by streamlining environmental reviews. The Sept. 27 2017 report — which was issued in response to a March 27 2017 memofrom Interior Secretary Ryan Zinke, but never publicly released — amounts to a blueprint for how the Trump administration plans to expedite extractive activities on 245 million acres of public land and 700 million acres of the mineral estate below the surface. The package, which includes policy changes with immediate impact as well as regulatory and legislative proposals that would take more time to execute, would eliminate lengthy federal reviews in many instances through “categorical exclusions” if officials determine the activities have no environmental impact.