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The CIA and the Crisis of Oversight

John Prados’s talk on October 28, 2013, at the Wilson Center’s Washington History Seminar in Washington, DC, went to the core of our present concerns with the extent and supervision of the federal government’s intelligence gathering activities in our republican society. The talk and discussion touched on current revelations about National Security Agency programs but primarily focused on the CIA, the subject of his most recent book, The Family Jewels: The CIA, Secrecy, and Presidential Power (University of Texas Press, 2013). Prados also works with the National Security Archive at George Washington University.

The central problem, as he succinctly outlined it, has been the inability of congressional oversight to both fully comprehend CIA activities and penetrate that agency’s “umbrella” of secrecy. The agency regularly uses existing laws to protect specific information, documents, and programs from questioning. The shielding of such information by both intelligence agencies and the president is intentional, he said, and goes back to the 1970s. A 1974 New York Times article uncovered the CIA’s “family jewels,” or secrets, revealing abuses of detainees. After investigations, reforms for domestic spying came with the Foreign Intelligence Surveillance Act of 1978. The 1980s and ’90s brought news of renditions black sites, surveillance of Americans, and assassinations. Prados stated that after such revelations the White House “circled the wagons” and usually “threw the agencies to the wolves.” President Ford set up a commission with limited powers. And congressional committees lacked the resources or personnel to fully understand agencies’ activities and demand full disclosure. Using the 1949 CIA Act, for example, the CIA can widely interpret its right to withhold documents to protect sources and methods. Starting in the George W. Bush era, the CIA was required to brief a “gang of eight” in Congress, but they were sworn to secrecy. In these ways and more, the congressional intelligence committees are at a perpetual disadvantage.

As threatening as these unchecked intelligence programs can be, how can we begin to control the range of intelligence activities? Prados urges that we establish a continuously functioning, extra-congressional investigatory body—with the kind of independence of the Federal Reserve Board—so that we maintain constant supervision, not solely in moments of crisis. It would have subpoena power over documents and people. Such review and even reevaluation of intelligence agencies is essential, he reasons, because their purposes and operations change over time.

Such a committee sounds ideal, but as the evening’s discussion suggested, creation of a nonpartisan and empowered committee would face serious obstacles, primarily political. Would a divided Congress agree to yield much of its authority, and how would members be chosen? And many argue for protection of CIA secrecy. The prospects of this solution seem dim for the near future; incremental reforms seem more likely. And another problem has gained urgency: can investigation and supervision of intelligence work keep up with rapidly advancing surveillance technology and methodologies that create new political and moral dilemmas?

— Benjamin Guterman

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The CIA’s Historical Review Program

By Peter Nyren

The CIA’s Historical Review Program (HRP) is responsible for the declassification review and release of documents detailing the Agency’s analysis and activities relating to historically significant topics and events. Tracing its roots back to 1985, the HRP was established as an outcome of congressional discussions that resulted in the passage of the CIA Information Act of 1984. The mission of the HRP is to showcase CIA’s contributions to national security, provide an accurate and objective understanding of the intelligence that has helped shape the foundation of major policy decisions, and release to the broadest audience possible information that is not otherwise subject to legally required review. Last year was a banner year for the Historical Review Program, which is managed by the Historical Collections Division (HCD) in CIA’s Information Management Services. HCD completed a total of eight release and outreach events in FY 2010, up from five in the previous fiscal year. In addition, each release was highlighted by a symposium held typically at partner organizations such as universities or presidential libraries. These symposia help place the declassified documents directly in the hands of historians and other academics most likely to benefit from using CIA source material in their research. As an added benefit, the public events drew significant coverage in the media, allowing us to reach a national, and even international, audience.

CIA featured each of the collections on its public web site (www.cia.gov) in the Special Collections section of the Freedom of Information Act Reading Room. After each event, the site saw significant spikes in traffic as the availability of the documents was publicized. Prior to our efforts to make historical collections available in electronic, searchable formats on the Internet, the documents were released in hardcopy, with limited finding aids. Access to the documents required researchers to physically visit the National Archives in College Park, MD. The Archives’ best estimate is that since the program began in 1984 through 2008, fewer than 10,000 researchers have accessed the hardcopy collections. In comparison, CIA’s historical collections in 2010 received more than 2.5 million hits on cia.gov. HCD continued its efforts to look for innovative ways to present historical information. For example, we benchmarked with George Washington’s Mount Vernon Estate and National Library. A recognized leader in presenting history to the public, Mount Vernon has developed a program that uses interactive displays built around historical documents to enhance the education and learning experience for the general public, while creating an effective search and retrieval system for documents to increase efficiency for researchers and historians. HCD has been able to apply these benchmarking lessons to the creation of our publications. By identifying two primary target audiences—academics and the general public—we have been able to successfully package material that caters to both. We have enhanced the content provided with each collection of declassified documents, giving a greater understanding of the context and environment or the historical period. [continued]

Read the full article in The Federalist, Summer 2011, Number 30, at http://shfg.org/shfg/publications/the-federalist/

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Katyn Forest Massacre Documents Release

The National Declassification Center has declassified and released over 1,000 pages of material related to the Katyn Forest Massacre, making some of them available online. The Center’s latest project originated from the request of Representatives Marcy Kaptur of Ohio and Daniel Lipinski of Illinois, who wrote to the President in August 2011 urging the release of “all U.S. government documents related to the Katyn Atrocities.”

The Center’s new guide “The Katyn Forest Massacre” contains background information on the spring 1940 massacre, explanation of the archival work involved, and select images of the mass grave area and of documents.

In the period April–May 1940 , the Soviet Peoples’ Commissariat for Internal Affairs (NKVD), on orders from Joseph Stalin cosigned by each of the members of the Politbureau, executed approximately 4,700 Polish army officers in the Katyn forest, and an additional 18,000 officers and soldiers at various locations throughout the USSR, including Kalinin (Tver), Kharkiv, Kiev, and in Belarusian prisons during the same period. The Soviets did so to eliminate the possibility of organized postwar resistance in Poland. German forces reported the discovery of the mass graves in mid-April 1943 after they recaptured the area. In a remarkable April 1944 document reproduced here, American prisoners of war Lt. Col. John H. Van Vliet, Jr., and Capt. Donald B. Stewart, who had submitted a formal protest in April 1943, prior to being taken to Katyn, responded to a query from the U.S. State Dept. submitted through the Puissance Protectrice, confirming that they were taken to the site by the Germans on May 13, 1943. The U.S. POWs, part of an eight-man POW group, were instructed to select a body for autopsy and encouraged to inspect the site and to ask questions. The Germans photographed and filmed the scene, and gave a selection of photos to the Senior Officer of the group, Lt. Col. Frank P. Stevenson, who distributed them to the U.S. officers as well as the others in the group. In addition, the two sent coded messages to U.S. Army intelligence throughout June–July 1943, reporting on what they  had seen and presenting their conclusion of Soviet guilt, evidence that strongly suggests that President Franklin Roosevelt and the U.S. and British governments knew of the Soviet atrocities by July 1943 but never admitted to it.

The Soviets denied the accusations, and a special congressional committee, known as the Madden Committee, investigated the massacre over a period of 13 months, starting in October 1951, generating a great deal of evidence. The special committee concluded in 1952 that the NKVD was responsible and requested that the State Dept. undertake certain steps:

3. Requesting that appropriate steps be taken by the General Assembly to seek action before the International World Court of Justice against the Union of Soviet Socialist Republics for committing a crime at Katyn that was in violation of the general principles of law recognized by civilized nations;
4. Requesting the President of the United States to instruct the United States delegation to seek the establishment of an international commission that would investigate other mass murders and crimes against humanity
.

These recommendations were never effectuated by the U.S. State Department

The Soviets continued to deny their role until April 13, 1990, when Russian President Mikhail Gorbachev admitted NKVD responsibility for the killings. President Boris Yeltsin released secret documents in 1992 that included NKVD materials.

Lt. Col. John H. Vliet and Capt. Donald B. Stewart certified in March 1944 that they were shown the Katyn Forest mass graves by their Nazi captors (National Archives).

The National Declassification Center faced a daunting task to locate relevant records, continuing to declassify items on an ongoing basis, as they are included in 25 different record groups. The primary collections of documents are in records of the House of Representatives Select Committee to Conduct an Investigation of the Facts, Evidence and Circumstances of the Katyn Forest Massacre (Record Group 233); Records of the Department of State (RG 59); and State Department Foreign Service posts (RG 84). The records include memoranda, telegrams, messages, dispatches, letters, notes, reports, surveys, photographs, translations of articles, and newspaper clippings. Other government agency records were also critical to the search, including those of the War Department General and Special Staffs (RG 319) and the Office of Strategic Services (RG 226). The Center reports that to uncover classified documents, it first examined declassified ones. That is, they were often successful in “correlating the unique identification number for the declassified file series, called the ‘declassification project number,’ to information withheld during the declassification project.” The project prepared finding aids and scanned 100 documents that can be viewed through Online Public Access at  http://www.archives.gov/research/search/ Agencies that participated in the declassification effort included the Central Intelligence Agency, the Department of the Army, the Defense Intelligence Agency, the Department of State, and others.

An intriguing aspect of this work is the discovery and declassification of materials from the MIS-X unit of Army Intelligence, records that had purportedly been all destroyed at the end of WWII (see The Escape Factory).  Although these are small numbers of items they raise the hope that other MIS-X materials may be located within the National Archives.

More related records await discovery, and the Center welcomes identifications of new Katyn records from researchers working at National Archives facilities. They note that when researchers find a withdrawal slip in the records, they can file a mandatory Declassification Review request for the document.

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Our thanks to Krystyna Piórkowska, author of English-speaking Witnesses to Katyn Recent Research, for corrections to this text.

Resources

Records Relating to the Katyn Forest Massacre at the National Archives http://www.archives.gov/research/foreign-policy/katyn-massacre/

Guide to U.S. House Records http://www.archives.gov/legislative/guide/house/chapter-22-select-katyn-forest-massacre.html

Selected Records–Finding Aid http://www.archives.gov/research/foreign-policy/katyn-massacre/selected-records.pdf

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NDC Releases Berlin Wall Documents

Among the hundreds of thousands of documents that the National Declassification Center has declassified and released are over 4,800 textual pages related to the Berlin Wall Crisis of August 1961. In the 50th year since the crisis, on October 27, 2011, the Center celebrated its declassification efforts with a symposium and a publication to highlight what the newly released documents reveal concerning that crisis. The symposium was held at the National Archives in Washington, DC. The project was a partnership of the Historical Collections Division of the CIA, the National Declassification Center (NDC) at the National Archives, the Department of State, Supreme Headquarters Allied Powers Europe (SHAPE), and the U.S. Army Center of Military History (CMH). Speakers included David Ferriero, Archivist of the United States; Joseph Lambert of the Central Intelligence Agency, William Richard Smyser of Georgetown University; Donald P. Steury of the CIA; Donald A, Carter of the CMH; Hope Harrison of Georgetown University; Lou Mehrer, CIA, retired; and Gregory W. Pedlow of Supreme Headquarters Allied Powers Europe.

The tensions of the era come through in the newly declassified State Department’s eight-part study (600 pages) covering November 1958–December 1962. It examines the important issues of the day; the discussions between the British, French, Germans, and NATO; and exhibits the contemporary perceptions of the U.S. and its allies. Other documents discuss the insufficient level of conventional western forces in Germany, the move away from contemplating use of nuclear weapons, discussions over the NATO and authority for military planning, the special training and preparation of U.S. Army forces in Berlin, CIA intelligence and reports surrounding the crisis, and developing U.S. plans for defend U.S. “interests.” Newly released photographs shed new light on military and personal experiences, and declassified maps provide more detailed evidence on the boundaries of the Wall, and locations of forces and resulting tensions.

The volume that accompanied the conference includes essays by presenters and project participants, historical background, maps of the Berlin Wall and city sectors, images, media files, and a DVD containing image files of the released documents and photographs. The volume, images, and full conference proceedings are available at  http://www.archives.gov/research/foreign-policy/cold-war/1961-berlin-crisis/2011-conference.html Questions: e-mail  berlin.1961crisis@nara.gov

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The OGIS Report on First-Year Progress

The Office of Government Information Services (OGIS) has been in operation over a year and has already made an important difference in the culture and operation of the Freedom of Information Act (FOIA) process. Viewing improvement in the FOIA process as central to declassification efforts, President Barrack Obama acted promptly on his first day in office, January 21, 2009, to sign a memorandum to promote among federal agencies “a new era of government.”

OGIS opened on September 8, 2009, within the National Archives and Records Administration. Its mandate from Congress was twofold: to review agencies’ policies, procedures, and compliance with FOIA requirements, and to act when required as a mediator between agencies and requestors. OGIS would be, in effect, an “ombudsman” for more effective government-wide FOIA procedures. The mediation option was new in these circumstances and offered opportunities for amenable resolution, as well as reform and improvement of government policies.

OGIS worked in conjunction with the Department of Justice’s Office of Information Policy (OIP), which has responsibility to develop and implement FOIA policies. “There is an intersection of duties,” states the Office’s first annual report, now available at http://www.archives.gov/ogis/reports/building-bridges-report.html. “To that end,” it continues, they “are working together to define interagency procedures for successfully fulfilling both offices’ roles. Collaboration between OGIS and OIP, while not yet fully realized, is critical to the effectiveness of both offices.”

New procedures are taking shape. OGIS has seven professionals on staff, and agencies have begun to contact and work with them to build a sense of trust through resolution of difficult cases. OPM has allowed creation of new positions at federal agencies titled “FOIA Officer” or “FOIA Specialist.” Agencies are to develop web pages clearly listing offices responsible for addressing FOIA requests, and to regularly produce information about their compliance in order to gauge progress and improve procedures (per Presidential memorandum of Jan. 18, 2011).

OGIS’s mediation role can include formal mediation, facilitation, and ombudsman services. With the high expense of formal mediation (using outside mediators), parties have thusfar exclusively taken advantage of facilitation services. In its first year, OGIS has handled 391 cases, with 83 involving more serious disputes between FOIA requestors and 24 departments and agencies. The report states that “more than four out of five cases ended with the requestor and the agency reaching an agreement. But for OGIS, most of these customers would not have received help.” In these 83 cases, facilitation “succeeded in 68 cases, with the requestor and the agency reaching an agreement. Whether records were disclosed or withheld, the parties in each of these cases agreed with the outcome, and the FOIA process worked.”

The report states that OGIS has tried to advance its mission in five ways: “by establishing a comprehensive process for reviewing agency FOIA policies and procedures, better educating FOIA requesters, establishing a permanent case management system, developing a fully operational mediation program, and regularly offering dispute resolution skills for agency FOIA professionals.” This last point has been particularly effective through cooperation with Alternative Dispute Resolution (ADR) programs at the agencies that can train agency FOIA personnel. That process has engendered better communication and improved results, and made formal mediation less likely. The ADR offices at the Departments of Defense, Interior, and Veterans Affairs have volunteered in pilot programs “in extending their existing mediation and dispute resolution programs to include FOIA disputes.”

The report cites numerous examples of the importance of released documents. The following provides a timely example:

After the April 2010 BP oil disaster in the Gulf of Mexico, the nonprofit Center for Public Integrity analyzed data obtained under FOIA and reported in May that 97 percent of all “egregious willful” violations cited by Occupational Safety and Health Administration inspectors in the previous three years were found at two BP-owned refineries. The Associated Press relied on FOIA to report in May that the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation and Enforcement) violated its own policy by not conducting monthly inspections on BP’s Deepwater Horizon rig. Two weeks later, the New York Times reported that Federal drilling records and well reports obtained from the Bureau under FOIA helped reveal a history of problems with a blowout preventer and casing long before the Deepwater Horizon explosion.

These developments provide encouraging news of improved and improving FOIA procedures, eventually with more uniform regulations and practices across the government. Of course, these facilitation efforts don’t guarantee release of documents to requestors, as many federal offices will continue to exercise their particular standards and reasons for denial of requests. But these procedures have begun a process of greater dialogue, uniform practices, and traceable progress for those requests. OGIS’s report notes efforts to promote “best practices,” closer work with agency liaisons on training and policies, and more precise recordkeeping of FOIA requests and their resolutions. OGIS has worked with 36 federal departments and agencies so far, a good start for government-wide progress in freedom of information.

Much progress is still needed, particularly with agencies that have been slow to comply with the new rules. Importantly, data on the number of FOIA requests, their disposition, and the backlog are reported on the Justice Department’s web site at www.foia.gov.

Web sites:

OGIS:  http://www.archives.gov/ogis/

OGIS report:  “The First Year: Building Bridges Between FOIA Requesters and Federal Agencies,”  http://www.archives.gov/ogis/reports/building-bridges-report.html

Department of Justice FOIA:  www.foia.gov

— Benjamin Guterman, co-editor of The Federalist newsletter and Federal History journal

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The Reducing Over-Classification Act Becomes Law

By Kevin R. Kosar

President Barack H. Obama signed the Reducing Over-Classification Act on October 7, 2010 (P.L. 111-258).  The law creates new policies to discourage over-classification by federal agencies, particularly the Department of Homeland Security and the intelligence agencies.

Over-classification, or the tendency of agencies to classify information needlessly or at levels higher than warranted, long has been a bone of contention for historians and researchers.  They want information, and government agencies often withhold it for fear of harming national security.

In enacting this legislation, Congress expressed the concern that over-classification also could be harmful to national security. Its Senate report (S. Rept. 111-200) states,

Over-classification of information is particularly problematic with respect to the threat of terrorist attacks against the United States.  In its examination of the terrorist attacks of September 11, 2001, the 9/11 Commission found that existing classification policies and procedures nurtured over-classification and excessive compartmentalization of information among agencies in several respects. (p. 2)

Agencies have weak incentives to share information, and strong incentives to withhold it. Agencies tend, the report writes, to operate on a “need-to-know” basis rather than a “need-to-share” basis. (p. 2)  Additionally, current classified information policies discourage federal agencies from adequately sharing information with relevant state, local, and American Indian tribal authorities.

To improve matters, the Reducing Over-Classification Act makes many changes to current law, including requiring: (1) executive branch inspectors general to annually assess their agencies’ classification activities to ensure they are in accordance with applicable classification policies, procedures, rules, and regulations; (2) executive branch agencies to consider employees’ consistent and proper classification of information in determining whether to award any personnel incentive to that employee; (3) the Secretary of Homeland Security to designate a Classified Information Advisory Officer to assist state, local, tribal, and private sector entities in matters related to classified information; and (4) having the Director of National Intelligence promote information sharing amongst agencies and require individuals in the intelligence community to undergo annual training in proper classification policies and procedures.

Rep. Jane Harmon (CA) sponsored the legislation, which she first introduced during the 110th Congress on December 18, 2007.

— Kevin R. Kosar is an analyst at the Library of Congress’s Congressional Research Service. The views expressed herein are those of the author and are not presented as those of the Congressional Research Service or the Library of Congress.

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National Declassification Center

The National Declassification Center (NDC) was formally established at the National Archives at College Park on January 4, 2010. The Center was conceived though studies by the Information Security Oversight Office (ISOO) of the growing backlog of classified records, particularly textual records. It was also spurred by President Obama’s executive order (E.O. 13526, Dec. 29, 2009) for expedited declassification. While 1.444 billion pages have been declassified since President Clinton’s E.O. 12958 in 1995, a large backlog of textual records remains. And each year a batch of approximately 15 million 25-year-old classified records arrives. In addition, there are demands from Congress and researchers for reviews. It has been estimated that under the current system the backlog in pages (408 mil. pages at NARA) grows at 4 million per year (15 mil. accessioned and 11 mil. declassified per year) so that it will never be cleared. Inefficient review processes among multiple agencies is the key holdup. The plan is to develop greater efficiency at key stages in the process to eventually process 120 million pages per year. Training, better certification of reviewers, partnerships between agencies, priority plans for records of interest, interagency referral programs for review, and improved review facilities are being implemented. The goal is to greatly reduce the current 3–7 year processing time for documents so as to be capable of processing 10 times the current volume by December 31, 2013. A planned web page will list newly declassified records. More information at www.archives.gov/declassification.

Joint Referral Center

The Joint Referral Center (JRC), a cooperative effort of the Department of Defense (DOD) and the National Archives opened on March 8, 2010, at the Army Declassification Activity near Fort Belvoir, VA. The Center addresses the problem of the backlog of more than 400 million pages of classified records due to be released by December 31, 2013, under E.O. 13526. A key issue is the more than two million document referrals that must be made to agencies that did not originate the documents. The JRC will aim to clear referrals within the defense community before they enter the processes of the National Declassification Center (NWD). Reviewers will also look at unreferred and nonexempt documents for critical equities that have been missed—all part of an unprecedented process in which members of different military service branches have the authority to review and declassify or exempt documents originated by another branch. The Center should reduce the amount of work done by the National Declassification Center.

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