Federal Agencies Need Not Confirm or Deny Electronic Surveillance under FOIA

The U.S. Court of Appeals for the Second Circuit affirmed that the National Security Agency and the Department of Justice do not need to confirm or deny the existence of electronic surveillance records under FOIA. The appellate court found that federal agencies are allowed to file "Glomar" responses, which were first judicially recognized in 1976 and grant an agency express refusal to even confirm or deny the existence of any records responsive to a FOIA request in the national security context.

The lawsuit was brought by advocates for former Guantanamo Bay detainees after the agencies invoked FOIA exceptions to information request regarding warrantless electronic surveillance conducted by the Terrorist Surveillance Program.

Get more particulars here.

Holder Announces DOJ Policies re: State Secrets Privilege

Attorney General Eric Holder today released new policies and procedures for the Department of Justice regarding the invocation of the state secrets privilege in litigation. The policies go into effect on October 1.

The policies are designed to "strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests."

Under the new policies, the Justice Department will not defend an assertion of the privilege from a government department or agency without the personal approval of the Attorney General. It also establishes a State Secrets Review Committee comprised of senior DOJ officials designated by the Attorney General.

When seeking to invoke the privilege, the department or agency must make a sufficient showing that the privilege is necessary to protect information that could lead to significant harm to national defense or foreign relations.

The new policies announce that the Justice Department will not invoke the privilege to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment; to restrain competition; or to delay the release of information undeserving of the state secrets privilege.

More from the Washington Post here and The Hill here.

FOIA Request Reveals Contradictory Evidence to ODNI's Statement that Iran is Assisting the Taliban

From the Asia Times Online comes a report from Gareth Porter, an investigative historian and journalist specializing in U.S. national security policy, that a statement made by the head of the Office of the Director of National Intelligence (ODNI), Dennis Blair, may be incorrect.

The Federation of American Scientists released Blair's February 12, 2009 testimony responses to the Senate Select Committee on Intelligence under the Freedom of Information Act on July 30. In support of the assertion that Iran is supporting the Taliban, Blair cited a statement by a Taliban commander attributing military success against NATO forces to Iran.

Gareth's reporting details how the evidence from the U.S. Department of Defense, Canadian forces in Afghanistan, and the Taliban contradicts the Taliban commander, instead suggesting that increased damage to NATO tanks stems from anti-tank mines provided by the U.S. to the jihadi movement against the Soviets in Afghanistan in the 1980s.

Please read the full report for more information.

Three Articles Regarding the Obama Administration's Efforts Toward Transparency

During his campaign, Obama pledged to run the most transparent administration in history. Nextgov.com reports that open government advocates are criticizing the administration's efforts in fulfilling this campaign promise, saying the administration is placing too much emphasis on building websites rather than publishing information.

But, in a break with previous administrations, the Obama administration will release the names of visitors to the White House beginning in mid-September, reports USA Today.

The Secret Service will disclose electronic visitor logs, including the names of the visitors and who set up the meeting as well as where it was held and for how long within within three to four months of the visit. Information relating to cases of national security, extreme confidentiality or strictly personal visits to the first family would not be released.

"We will achieve our goal of making this administration the most open and transparent administration in history not only by opening the doors of the White House to more Americans, but by shining a light on the business conducted inside," Obama said. "Americans have a right to know whose voices are being heard in the policymaking process."

Archon Fung, a professor at Harvard University's John F. Kennedy School of Government, offers his views on how the administration should go about fulfilling the campaign promise.

Enviro groups ask for list of 'high hazard' disposal sites

A band of environmental groups filed an FOIA request after the EPA declined to provide information on which coal ash sites have been deemed a national security risk. Apparently, the Department of Homeland Security has designated 44 massive coal ash piles as high hazard, but the EPA was informed not to release the site locations due to national security risks.

A coalition of environmental groups today formally asked the Department of Homeland Security, the Army Corp of Engineers and Environmental Protection Agency to make public the list of 44 "high hazard" coal ash disposal sites across the country. The Freedom of Information Act request was submitted by the Sierra Club, Earthjustice, the Environmental Integrity Project, and Natural Resources Defense Council after the EPA refused to disclose which of the hundreds of coal ash sites pose such a threat to nearby communities that they have been deemed by the Obama administration to be a national security risk.

"The Department of Homeland Security has designated 44 massive coal ash piles as 'high hazard' because they present a clear and present danger to the people living near them," said Bruce Nilles, Director of the Sierra Club's Beyond Coal Campaign. "People have a right to know if mountains of toxic coal ash are threatening their communities so they can take action and put pressure on their local utilities to demand clean up."

The EPA was instructed by the Department of Homeland Security not to release information about the location of high hazard dams containing coal ash. Unspecified national security concerns were cited as the reason for withholding this critical information from the public, even though the locations of other hazardous sites, such as nuclear plants are publicly available.

More here.

Obama orders review of classification system

President Barack Obama ordered national security adviser James L. Jones to suggest revisions to the existing presidential order on national security classification, the AP reported. Jones is also tasked with deciding whether a National Declassification Center should be created to address the backlog of 51 million pages scheduled for declassification. Obama also called for a government-wide task force to standardized the stamps used on controlled but unclassified documents. There are currently 107 different stamps and 130 different procedures for appying them.

Expanding his drive to open government, President Barack Obama is ordering two studies of whether the government is classifying too much information and using too many different ways to keep it from public view.

He wants the answers in just 90 days, and it's no secret which way he's leaning.
In a memo Wednesday, Obama ordered national security adviser James L. Jones to consult relevant agencies and recommend revisions in the existing presidential order on national security classification that lays out the rules under which agencies can stamp documents confidential, secret or top secret.

More here.

Obama contradiction leads to bill

The Obama administration ruffled quite a few feathers by taking the same position as former President Bush on an issue involving government secrecy and torture, two positions Obama condemned upon entering office. Now legislation has been filed to limit the use of the "state secrets" privilege, the Boston Globe reported. Senate Judiciary Committee Chairman Patrick Leahy said the bill "does not restrict the government's ability to assert the privilege in appropriate cases. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill afford to delay consideration of this important legislation."

House and Senate committees yesterday introduced bills that would sharply curtail the government's use of the "state secrets" privilege, a policy used by President Bush to argue that a lawsuit involving allegations of torture should be dismissed - and a position that the Obama administration has now adopted.

Drafted and filed separately by the House and Senate Judiciary committees, the legislation was filed just days after Justice Department lawyers working for the new administration told a federal appeals court that its position did not differ from the Bush administration's: the court should throw out a lawsuit that accuses Jeppesen Inc., of helping the CIA secretly transport five terrorism suspects overseas for harsh interrogations, on the grounds that the suit involved state secrets that, if revealed, could jeopardize national security.

More here.

ACLU tests whether Obama will keep his word

Now that President Obama has advised federal officials to process records requests with a presumption of the openness, the ACLU is trying to obtain at least 50 secret Justice Department memos which supposingly justify or provide details of interrogations or wire tapping. The McClatchy Washington Bureau site provides links to the request letter, a list of the missing memos and more on Obama's executive order. Click More Here below.

Dozens of secret documents justifying the Bush administration's spying and interrogation programs could see the light of day because of a new presidential directive.

The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.

For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.

More here.