Chief Keith and the Revolving Door

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This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.

Keith Alexander's financial disclosure is vital to national security interests or something

Over at The Atlantic, Conor Friedersdorf has an excellent piece on Jason Leopold's FOIA lawsuit to obtain former NSA chief Keith Alexander's financial disclosure statements.

Since moving on from the NSA, Alexander has parlayed his role as one of the nation's top spies into a lucrative consulting career. Like one does these days. However, the NSA has steered a novel course and argued Alexander's financial disclosure statements, which are required by law to reveal potential conflicts of interest, are exempt from disclosure because—brace yourself for government logic—Alexander's identity must be protected.

The law cited by the NSA serves a very real purpose: to shield the identity of intelligence community members. But here the NSA is arguing that the nation's security would be imperiled by revealing the details of how a public figure peddles his expertise for "as much as $1 million a month," according to Bloomberg.

But what's interesting is that, according to the very law the NSA cites, the disclosure statements can only be exempted at the direction of the president.

"The letter denying Mr. Leopold’s request for financial disclosure statements did not indicate that the President had in fact made a finding that, due to the nature of the office or position of the Director of the National Security Agency, the identity of the individual or other sensitive information, compromise the national interest of the United States," Leopold writes in his complaint. "Instead, the letter simply cites the exemption provision of the statute. It is not the case, however, that 5 USC app. § 105(a)(1) automatically exempts every employee of the NSA from the public disclosure requirement, and hundreds of NSA employees annually file publicly available financial disclosure forms. Absent evidence of a waiver, public disclosure is required."

Here's the money graf from Friedersdorf:

"The American people are entitled to see Alexander's financial conflicts of interest unless Obama himself declares that revealing them would somehow 'compromise the national interest of the United States.' Would Obama do so, despite pledges to run the most transparent administration in history? Sadly, those pledges stopped being credible a long time ago. It is nevertheless worth noting what Obama would be saying if he helps suppress Alexander's paperwork: that the national interest would be more imperiled by the public knowing how an extremely powerful government official earned money outside of his official duties than by that very powerful man, with a head full of classified information, selling his services to the highest bidder without meaningful public scrutiny."

And here we have a perfect encapsulation of government transparency in the current age: A wild disregard for the spirit of the law, a comically broad and advantageous reading of the letter of the law, and an insistence on fighting like a cornered wolverine to block or at least delay disclosure, despite lip-service to transparency—all to protect a former high-level administration official who has moved through the revolving door and is now enriching himself through his prior government work. Take a bow, Obama administration.

LAWSUITS

  • Judge seals filings in FOIA suit over DOJ investigation of Wikileaks
  • JFK researcher denied attorney fees in FOIA suit
  • Justice Dept. moves to shield filings in defamation suit involving United Against Nuclear Iran
  • U.S. Court of Appeals rules government must release cybersecurity directive to EPIC, vacates lower court ruling
  • Judge rules government must release Vaughn Index to Judicial Watch of Fast and Furious docs withheld from Congress under executive privilege

Circular reasoning: CIA tells FOIA requester he needs to know everything about emails he's requesting before he can request them.

ProPublica report: 'Lobbyists Bidding to Block Government Regs Set Sights on Secretive White House Office.'

Human Rights Watch dropped a big report, "With Liberty to Monitor All How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy." From the report:

Journalists told us that officials are substantially less willing to be in contact with the press, even with regard to unclassified matters or personal opinions, than they were even a few years ago. This can create serious challenges for journalists who cover national security, intelligence and law enforcement, and who often operate in a gray area—working with information that is sensitive but not necessarily classified, and speaking with multiple sources to confirm and piece together the details of a story that may be of tremendous public interest.

In turn, journalists increasingly feel the need to adopt elaborate steps to protect sources and information, and eliminate any digital trail of their investigations—from using high-end encryption, to resorting to burner phones, to abandoning all online communication and trying exclusively to meet sources in person.

Journalists expressed concern that, rather than being treated as essential checks on government and partners in ensuring a healthy democratic debate, they now feel they may be viewed as suspect for doing their jobs. One prominent journalist summed up what many seemed to be feeling as follows: “I don’t want the government to force me to act like a spy. I’m not a spy; I’m a journalist.”[...]

Lawyers we interviewed for this report expressed the greatest concern about situations where they have reason to think the US government might take an intelligence interest in a case, whether it relates to the activities of foreign governments or a drug or terrorism prosecution. As with the journalists, lawyers increasingly feel under pressure to adopt strategies to avoid leaving a digital trail that could be monitored; some use burner phones, others seek out technologies they feel may be more secure, and others reported traveling more for in-person meetings. Some described other lawyers expressing reluctance to take on certain cases that might incur surveillance, though by and large the attorneys interviewed for this report seemed determined to do their best to continue representing clients. Like journalists, some felt frustrated, and even offended, that they were in this situation. “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said one.

I've talked to journalists who use burner phones, and some national security journalists even work in crude imitations of the intelligence community's "Sensitive Compartmented Information Facilities" (SCIFs). What a time to be alive.

Potentially useful for some of you: The FBI's b(5) exemption guidance [PDF]

The Center for Public Intergrity has launched an ambitious project to track money and influence in 6,300 elections state across the country in 2015 and 2016.

FOIA Redaction of the Week courtesy of Arizona Republic reporter Ryan Randazzo and the Energy Department. Please note that these emails from a private company to the Energy Dept. regarding a government-backed solar project are considered "deliberative process."

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The Most Transparent Administration in History, an ongoing series

On CNN's Reliable Sources, Brian Stelter continues to investigate whether the Obama administration is really the most transparent administration in history. You'll be shocked to hear that former Washington Post executive editor Len Downie and BuzzFeed investigative reporter Chris Hamby disagree with the administration's opinion of itself.

Meanwhile, former White House press secretary Jay Carney thinks the White House press corps is just stunting for the cameras during briefings.

“It’s very interesting to see the difference between the briefing in the White House—fully televised, carried live online, tweeted about as it happens—and the off-camera but on-the-record briefings that we would, for example, or I would do on Air Force One with the traveling press corps on the plane,” Carney told David Letterman Wednesday night on the “Late Show with David Letterman.”

“The seriousness of the questions is the same, in some cases more serious off camera, but the kind of posing and histrionics and, you know, faux indignation that you get sometimes … I think that when you’re on TV you tend to play to the cameras.”

Jay Carney is also a former reporter, which is a fun thing to remind one's self of every now and then.

How to get records from the EPA: At the American Spectator, Kevin Mooney describes an ambitious new attempt to pry information out of the EPA:

[A] savvy team of attorneys has seized upon an “obscure, but potentially” powerful federal law that could force the agency to disclose its concealed data.

The non-profit Institute for Trade, Standards and Sustainable Development (ITSSD), based in Princeton, New Jersey, has filed a new 145-page Freedom of Information Act request with the EPA that asks the agency to release reports and records the agency has that were used to justify its 2009 greenhouse gas (GHG) endangerment finding under the Clean Air Act (CAA). Specifically, the FOIA asks the agency to detail, step-by-step, how it complied with “highest and most rigorous standards applicable to what are called highly influential scientific assessments, or HISAs, imposed by the Information Quality Act (IQA) and the Office of Management and Budget (OMB).”

STATE NEWS

  • AP reporter highlights FOIA follies in South Carolina. The Columbia Journalism Review has a deep-dive on the state's turn against transparency.
  • University's private foundation is a public entity, North Dakota A.G. decides. I wouldn't bet on this one being repeated in other states anytime soon.
  • August sunshine in gov report for Virginia
  • 50 States of FOIA project has the lowdown on Louisiana
  • Rhode Island open records audit yields troubling results

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