looky what we have here. Computer technicians have found 22 million (yes *million*!) missing e-mail from the bush White House. Back in May, 2008, the number of missing e-mail was 5 million. We'll continue to track this issue.
UPDATE 12/15/09: National Security Archive has more background and context.
Meredith Fuchs, general counsel to the National Security Archive, said "many poor choices were made during the Bush administration and there was little concern about the availability of e-mail records despite the fact that they were contending with regular subpoenas for records and had a legal obligation to preserve their records."
"We may never discover the full story of what happened here," said Melanie Sloan, CREW's executive director. "It seems like they just didn't want the e-mails preserved."
Sloan said the latest count of misplaced e-mails "gives us confirmation that the Bush administration lied when they said no e-mails were missing."
Steven Aftergood has a good post about the CIA Records Search Tool (CREST): CIA’s CREST Leaves Cavity in Public Domain, by Steven Aftergood, Secrecy News, April 6, 2009. Among other things he points to the new article in Mother Jones:
- Inside the CIA's (Sort of) Secret Document Stash. by Bruce Falconer. Mother Jones. 3 Apr 2009.
The article notes that the CIA monitors users of the FOIA documents:
Next to the computer terminals is a sign warning that "the CIA will gather and store information about your visit automatically" (a message driven home by two overhead video cameras encased in tinted glass) and that "unauthorized attempts to modify any information stored on this system, to defeat or circumvent security measures, or to utilize this system for other than its intended purposes are prohibited and may result in criminal prosecution."
See also: CIA Records Search Tool (CREST).
The National Coalition for History has the story: Presidential Records Reform Act is the First Bill Passed by the New House.
The end may finally be in sight to the seven-year battle historians and archivists have waged to overturn President Bush’s Executive Order 13233 of November 2001 that restricted access to presidential records. On January 7, 2009, the House of Representatives approved H.R. 35, the “Presidential Records Act Amendments of 2009,” by an overwhelmingly bi-partisan vote of 359-58. H.R. 35 was chosen by the House leadership as the first piece of substantive legislation passed in 2009 as a symbol of government transparency.
Secret Law And The Threat To Democratic And Accountable Government, Hearing before the Subcommittee On The Constitution Of The Committee On The Judiciary United States Senate, April 30, 2008, (S. Hrg. 110-604, DOCID: f:44955.wais, Serial No. J-110-89, ASCII version. Theoretically available as PDF from GPO, but definitely available from FAS: PDF; FAS also has ASCII version).
From the opening statement by Senator Russell Feingold,
The notion of secret law has been described in court opinions and law treatises as ``repugnant'' and ``an abomination''. It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. When it became apparent in the middle of the 20th century that Federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public for the express purpose of preventing a regime of secret law.
That purpose today is being thwarted. Congressional enactments and agency regulations are, for the most part, still public. But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from Congress as well.
Feingold mentions many problems, among them the discovery that the Office of Legal Counsel has taken the position that a President can waive or modify a published Executive order without any notice to the public or Congress--simply by not following it. He says, "abrogating an Executive order without any public notice works a secret change in the law. Worse, because the published order stays on the books, it actively misleads Congress and the public as to what the law is. That has the effect--presumably the intended effect--of derailing any accountability or oversight that could otherwise occur."
Thanks, and a tip of the hat to Secrecy News!
EO 13233 restricts access to the records of former presidents. There is an interesting article on the Order over at History News Network:
- Bush's 11th-Hour Bid for Secrecy, by Stanley Kutler, November 30, 2008, reposted from Truthdig.
I recommend the HNN site for this article because of the useful comments by Maarja Krusten (there are two, so far).
The thing I like about blogging is being able to connect the dots, to provide a context in order to expand on or prove a point. Sometimes, it takes work and a good deal of brain power. Other times, those dots just connect themselves.
This is one of those latter times. I probably could have simply given links to the following 2 articles and nothing more. It's *that* clear that these 2 articles are proof positive that government secrecy is deep-rooted, pervasive and far-reaching and happen as a matter of course from the insignificant to the fundamental. Of course, some secrecy is justified (like some lobbying is justified; after all, ALA is a lobbyist!), but these 2 articles show that there's an information war going on and the losers will be the American public, historians, researchers, libraries etc. It's also clear reason for getting digital govt information off of govt servers as quickly as possible, getting it onto public FTP sites like public.resource.org, into LOCKSS caches like the U.S. Government Documents Private LOCKSS Network, and into public, non-profit digital archives like the Internet Archive. As U.S. Supreme Court Justice Louis Brandeis said, "Sunlight is the best disinfectant," and it can only shine in public.
- Last Secrets of the Bush Administration: How to find out what we still don't know. By Charles Homans. Washington Monthly, November/December 2008.
- Airbrushing History, American Style. Scott Althaus and Kalev Leetaru. Cline Center for Democracy, University of Illinois Urbana-Champaign. (NYT article provides more background: "Iraq Ally Lists Were Altered, Study Shows". Thom Shanker. NY Times, November 24, 2008)
(Homans) Gonzales’s March 2001 memo was the opening salvo in a war over information, one that began in the earliest days of the Bush administration and will continue beyond its end. The stakes, which no one could have predicted when the letter crossed Carlin’s desk, are now self-evidently enormous: when Bush hands over the keys to the White House in January, he will leave behind more unanswered questions of sweeping national importance than any modern president. We still do not know how intelligence operatives, acting in the name of the United States, have interrogated suspected terrorists, and how they are interrogating them now. We do not know how many Americans’ phone calls and e-mails were scanned by the National Security Agency. We do not know—although we can guess—who ordered the firings of the U.S. attorneys who didn’t comply with the Bush administration’s political agenda, and we do not know who may have been wrongly prosecuted by those who did. There are large gaps in our understanding of the backstories to everything from pre-war intelligence in Iraq to the censoring of scientific opinion at the Environmental Protection Agency and the Department of the Interior. And those are the things we know we don’t know—there are also what Donald Rumsfeld might call the unknown unknowns.
(Althaus and Leetaru)
- There are at least five documents taking the form of White House press releases that detail the number and names of countries in the "Coalition of the Willing" that publicly supported the 2003 invasion of Iraq. At one time, all five of these documents were archived on the White House web site.
- Today, only three of these five documents can still be accessed in the White House archives. One of the missing lists was removed from the White House web site at some point in late 2004, and the other was removed between late 2005 and early 2006. These two "missing" lists represent earlier and smaller lists of coalition members.
- The text of three of these five documents was altered at some point after their initial release, even though in most cases the documents still retained their original release dates and were presented as unaltered originals. These alterations to the public record changed the apparent number of countries making up the coalition, as well as the names of countries in the coalition. Some of these alterations appear to have been made as long as two years after the document's purported release date.
- Of the five documents, only two appear to have remained unaltered after the date of their initial release. These are the only two of the five that could be authentic originals. However, we find no evidence that either of these press releases was distributed broadly to the media through normal electronic channels.
- Two versions of the coalition list dated March 27, 2003 can be currently accessed on the White House web site. Both claim that there were 49 countries in the coalition, but one lists only 48 by name, omitting Costa Rica. The revision history of this document shows that Costa Rica's name was removed retroactively at some point in late 2004, after the Costa Rican Supreme Court ruled that continued use of its name on the list was a violation of Costa Rica's constitution.
- Taken together, these findings suggest a pattern of revision and removal from the public record that spans several years, from 2003 through at least 2005. Instead of issuing a series of revised lists with new dates, or maintaining an updated master list while preserving copies of the old ones, the White House removed original documents, altered them, and replaced them with backdated modifications that only appear to be originals.
We've posted previously about the Plum Book and how this simple US govt phonebook has been surreptitiously changed to further a political agenda. Now Think Progress has picked up the story. They point out that both the 2004 and 2008 editions offer a startling — and erroneous — assertion: The office of the Vice President is not in the executive branch. Both versions put the description of the VP’s office last under “Appendices,” rather than in the Executive Branch section:
The Vice Presidency is a unique office that is neither a part of the executive branch nor a part of the legislative branch, but is attached by the Constitution to the latter. The Vice Presidency performs functions in both the legislative branch (see article I, section 3 of the Constitution) and in the executive branch (see article II, and amendments XII and XXV, of the Constitution, and section 106 of title 3 of the United States Code).
Senators Ask FBI to Explain Flawed 'National Security Letter' to Internet Archive, By Ryan Singel, Wired Blog, May 15, 2008.
A bipartisan group of U.S. senators is asking FBI head Robert Mueller to explain why the feds sought records from the Internet Archive, a digital library, using a controversial administrative subpoena known as a National Security Letter, which is intended for a communications service providers....
Specifically, they asked Mueller if the FBI actually believed that the Internet Archive was an communications service provider. If it were, FBI agents could get subscriber records using an NSL under the auspices of the Electronic Communications Protection Act. But if the Internet Archive is a library, that subpoena would be inapplicable and possibly illegal. That would mean that the NSL should be reported to the Intelligence Oversight Board as a possible violation of law.
The senators are asking Mueller if the Internet Archive subpoena actually was reported to the board.
On May 9, this past Friday, the White House issued a memorandum doing away with the old category of "Sensitive But Unclassified" and replacing it with "Controlled Unclassified Information."
Here is how the memo defines CUI (bolding mine):
a. "Controlled Unclassified Information" is a categorical designation that refers to unclassified information that does not meet the standards for National Security Classification under Executive Order 12958, as amended, but is (i) pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government, and (ii) under law or policy requires protection from unauthorized disclosure, special handling safeguards, or prescribed limits on exchange or dissemination. Henceforth, the designation CUI replaces "Sensitive But Unclassified" (SBU).
This is such a broad brush that it could be used to exempt anything from public disclosure. By definition, isn't anything the government produces at least somewhat pertinent to the national interests of the United States? Otherwise, why waste taxpayer dollars and government time creating the product?
Then there's the allowance for "policy." I'm sure that DoD's 2002 domestic propaganda program probably "required protection" from "unauthorized disclosure" for "policy" reasons.
This is a definition that appears to be designed to give the executive branch total control over what information is released by the US Government regardless of existing law. It is an order that should be challenged by Congress today with no funding permitted for its implementation. Assuming the President doesn't back down, it should be one of the first items revoked by the incoming President.
Government information items should be properly classified and protected, safeguarded when containing individuals personal data, or public record. No twilight zone of "It's unclassified, by I can't give it to you for reasons of government policy."
The U.S. Federal Bureau of Investigation (FBI) has withdrawn a secret demand, issued as a national security letter (NSL), that the Internet Archive (IA) provide the agency with a user's personal information after Brewster Kahle, the Electronic Frontier Foundation (EFF), and the American Civil Liberties Union (ACLU) challenged the records request in court.
- FBI Withdraws Unconstitutional NSL Served on Internet Archive, ACLU. (Includes links to documents)
Since the Patriot Act was authorized in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. Reports from the Justice Department's Inspector General reveal that the FBI has issued nearly 200,000 NSL between 2003 and 2006. Multiple investigations have found serious FBI abuses of regulations and numerous potential violations of the law.
- Internet Archive Challenges F.B.I.’s Secret Records Demand, by Grant Gross, IDG News Service, New York Times, May 7, 2008 (or Internet Archive challenges FBI's secret records demand, by Grant Gross, in InfoWorld).
In each of the three court challenges to the NSL program, the FBI has withdrawn the information demands, ACLU's Goodman said. "I think that calls into question how much the FBI needed the information in the first place and, frankly, whether the FBI needs this kind of sweeping and unchecked surveillance power," she said.