Wednesday, February 26, 2014

Confirmed: The CIA Destroyed Its Noam Chomsky File and Thousands More on Other U.S. Citizens

I can now confirm that the reason why the CIA could not locate its file on Noam Chomsky, despite the fact that the CIA had in fact maintained records on him, is that the CIA destroyed them and, unfortunately in my view, the destruction was authorized by the Archivist of the United States.

As background, in an earlier post "More CIA Records on Noam Chomsky the CIA Could Not Find" I analyzed some additional CIA records (see, e.g.,  here from 1967, here, here, and here from 1970, and here from 1971) showing that the CIA was documenting the activities of Noam Chomsky as part of the CIA's CHAOS/MHCHAOS program. Importantly, those documents were located in the "Segregated Collection" of CIA records that were provided to the House Select Committee on Assassinations established in 1976 to investigate the assassinations of JFK and MLK, which are available in full-text search from the Mary Ferrell Foundation

My post was a follow-up to John Hudson's earlier piece in Foreign Policy called "Exclusive: After Multiple Denials, CIA Admits to Snooping on Noam Chomsky" that was based on a CIA document obtained via a FOIA request to the FBI by Kel McClanahan at National Security Counselors on behalf of Chomsky biographer Fredric Maxwell after the CIA had repeatedly denied possession any such records.

The new piece of the puzzle, just obtained via FOIA, is this CIA records control schedule, NC1-263-78-1, signed by then Archivist James B. Rhoads in March 1978 approving a "Request for immediate disposal" of thousands of CIA files on U.S. citizens "and the index related to these collections which were established under project CHAOS during the period 1967-1974."  The schedule notes that the "files were opened to maintain information bearing on possible foreign Communist exploitation of dissention in the United States, primarily concerning the Vietnam War. Subject of the folders were U.S. citizens and organizations involved in dissident activities in the United States."  

The schedule actually quantifies these files noting there were "8,328 folders on individual U.S. persons (citizens, resident aliens) and 2,196 volumes consisting of official and 'soft' subject files and so-called sensitive files (i.e., organizations/activities)." The CIA only requested immediate destruction of 7,840 of the files and was retaining the other 488, because it had deemed them to be of "continuing foreign intelligence or counter-intelligence interest." The schedule also excludes records that were, at the time, subject to FOIA or Privacy Act requests.

The schedule explains why the CIA denied having any such records and why the CIA records on Chomsky have been found in collections outside the CIA. Moreover, on its face, this approved records schedule made the destruction of the records consistent with the procedure outlined in the statutes collectively referred to as the Federal Records Act (although it is not conclusive as courts can, and have, found that even records schedules fail to comply with the federal records laws (see, e.g., American Friends Serv. Comm. v. Webster, 720 F.2d 29, 65-67 (D.C. Cir. 1983)). 

The bigger issue, as I suggested in my earlier post, is that the incomplete story of the CIA's creation, maintenance, and then destruction of its Noam Chomsky file highlights yet again a crucial question that needs attention and discussion in the ongoing debate over NSA surveillance files (previously discussed here).  Namely, the drive for "purging" surveillance data and "minimization" procedures purportedly designed to "protect privacy" needs to be balanced against the value of retaining government surveillance files (or some portion thereof) for long-term accountability purposes.  We now know that the CIA destroyed its file on Noam Chomsky based on a records schedule that cites the Privacy Act as justification, but that destruction also had the effect of creating, for years, the false impression that the CIA had never had such a file in the first place. There has to be a middle path that both protects privacy and also preserves accountability.

Tuesday, February 25, 2014

The Lost Archives of Noriega

I have a new law review article (available here) entitled "The Lost Archives of Noriega: Emancipating Panamanian Human Rights Documents in U.S. Military Custody" just published by the Boston University International Law Journal.  The article discusses the fate and legal status of over six million pages of records seized by U.S. forces in Panama that continue to sit in a military warehouse in Albany, Georgia.

Previous coverage of these documents is here.

Monday, February 24, 2014

U.S. Government Opposes $14.75 Million Judgment Against Russia Over Jewish Archives

The U.S. government has now filed a new Statement of Interest (here) in the Chabad v. Russian Federation case, which involves a dispute over the return of the historical Jewish library and archive (the so-called Schneerson collection) that remain in Russia.  The U.S. government opposes Chabad's recent motion for entry of "interim judgment" in the amount of $14.75 million against the Russian Federation that reflected, the $50,000 per day sanctions for Russia's failure to transfer custody of the library and archive to Chabad.

The new U.S. Statement of Interest begins by recycling the same argument the United States previously made -- and the court previously rejected -- that the Foreign Sovereign Immunities Act does not allow the sanctions the court is imposing.  The United States also recycles its earlier arguments that, even if the law allowed such sanctions, to impose them would be counterproductive to the the return of the property and would cause "harm to the United States' foreign policy interests."  Judge Lamberth previously rejected these arguments as well and it is hard to imagine he would suddenly find them persuasive now.

The one request of the U.S. government that Judge Lamberth is likely to grant is that, if the court grant's Chabad's motion, the U.S. wants Chabad "to provide the Court and the United States with advance notice of any efforts to take additional steps to enforce the Court's interim judgment" in order to "permit the United States to make a timely, considered determination as to what steps it might need to take to protect its interests." Elsewhere the United States alternatively phrases this as "the United States would consider taking appropriate action to seek to prevent or mitigate" the purported harm to its foreign policy interests.  What such "appropriate action" the U.S. government has in mind is unclear, but perhaps we may see in the future.

The final noteworthy part of the government's Statement of Interest its Exhibit A, which consists of a letter from Mary E. McLeod, the Principal Deputy Legal Adviser at the State Department. It primarily urges that the Department of Justice file a Statement of Interest, but also notes past and ongoing diplomatic efforts to resolve the dispute.  Of particular interest, it discloses that the U.S. State Department has proposed to the Russian Federation "a partial resolution through a state-to-state archival exchange agreement."  Whether that proposal simply involves the return of the library and archive at issue in the Chabad case pursuant to this agreement or whether the agreement actually involves the U.S. sending some unknown archives to the Russian Federation in "exchange" raises some interesting questions.  The letter also notes the corresponding lawsuit (for recent update see here) that the Russian Ministry of Cultural and the Russian State Library filed in Moscow last year against the United States and the U.S. Library of Congress in relation to seven books that are part of the Chabad collection that Russia had loaned to the Library of Congress during the 1990s.

Lastly, for an interesting account of what it is like to visit the collection in Moscow, see this recent piece by Paul Berger.

Wednesday, February 12, 2014

New Article on Iraqi Intel on Iranian Nuclear Program Based on Captured Documents

The CIA's latest issue of Studies in Intelligence has a new piece by an anonymous author entitled "Iraqi Human Intelligence Collection on Iran's Nuclear Weapons Program, 1980-2003" that relies upon a number of Iraqi documents captured by U.S. forces that are available at the Conflict Records Research Center at the National Defense University. The abstract of the new piece is below and available here, the full-text pdf of the article is here.
Well before the United States and the Western world first questioned Iran’s nuclear goals, members of Iraq’s intelligence services had recruited high-level Iranian officials and individuals involved in Tehran’s nuclear program. This article draws on captured IIS and GMID records held at the Conflict Records Research Center (CRRC) at the National Defense University in Washington, DC. Until US forces entered Iraq in 2003, most research on Saddam’s regime had relied on secondary sources or “the occasional memoir or defector’s account.” This is no longer the case. From the beginning of the Iraq War in 2003, US troops and their allies captured millions of Iraqi state records. The records, many of which are available to scholars today, offer a variety of primary sources relating to the inner-workings of Saddam’s Ba’athist state. The records also reveal much about Iraq’s foreign human intelligence (HUMINT) collection discipline, and it is upon these records that this account is largely based.

Friday, February 7, 2014

Senate Passes Resolution on Iraqi Jewish Archive: Some Thoughts

Last night the Senate passed by unanimous consent Senate Resolution 333 (available here), which "strongly urges" the State Department to "renegotiate" with Iraq "in order to ensure that the Iraqi Jewish Archive be kept in a place where its long-term preservation and care can be guaranteed."  Led by Sen. Pat Toomey, the Resolution had 30 co-sponsors from both parties.

Some thoughts:

First, the Resolution has a balanced tone which is conducive to the type of re-negotiation it urges.  It gives credit to Iraq, for example, for "acknowled[ing] the importance of the Archive" and demonstrating "a shared respect for the wishes of the Iraqi Jewish diaspora" based on its agreement to, and attendance at, the burial of several Torah fragments from the Archive in a New York cemetery in December 2013 (Iraqi Embassy press release on that event is here, AP coverage here).  The Resolution also both "reaffirms the United States commitment to cultural property under international law," which I would read as a show of respect for the position of Iraq, while it also "reaffirms the United States commitment to ensuring justice for victims of ethnic and religious persecution."

Second, the Resolution puts forward what appear to be reasonable and modest goals.  After a series of "whereas" phrases that put the status and fate of the Iraqi Jewish Archive in historical context, the substance of the Resolution is to urge (1) that the State Department negotiate with Iraq "in order to ensure that the Iraqi Jewish Archive be kept in a place where its long-term preservation and care can be guaranteed" and (2) that "the Iraqi Jewish Archive should be housed in a location that is accessible to scholars and to Iraqi Jews and their descendents who have a personal interest in it."  Of course, Iraq would respond that negotiation is not even necessary to accomplish goal (1), which Iraq has stated it shares.  Goal (2) is a bit more complex, however, especially given that (as the burial of the Torah fragments illustrated) special religious importance attaches to some of the physical originals that can not be replicated through digital copies and the fact, stated elsewhere in the Resolution, that the "Iraqi Jewish community" is "now represented by the diaspora outside Iraq."

Finally, the Resolution provides a compelling justification for new negotiations noting that the agreement between the National Archives and Records Administration (NARA) and the Coalition Provisional Authority (CPA) from August 2003 (available here) was signed "under great urgency and before adequate time could be dedicated to researching the history of the Iraqi Jewish Archive" and, again later in the Resolution, that that the agreement was "signed before knowing the complete history of the Iraqi Jewish Archive."  This is clearly correct.  As I mentioned in an earlier post, for example, when the State Department published a Notice in the Federal Register in August 2003 designed to protect the Iraqi Jewish Archive under the Immunity from Seizure Act it strains credulity that the State Department enforced even its own standards that purport to require a "professional inquiry" using "independent, multi-source research" into the provenance of foreign cultural property coming into the U.S. and a certification that there is no "reason to know"of any "potential for competing claims of ownership." The complexity of the legal status of the Archive was simply not considered adequately and fully in the rush -- both understandable and praiseworthy -- to protect them.

More broadly, the larger issue is the nature of the "agreement" that the Resolution urges the State Department to "re-negotiate," which raises unresolved questions.  A recent news piece on the controversy over the Archive, for example, includes quotes from U.S. Rep. Jerrold Nadler asserting that the NARA-CPA agreement was essentially between two U.S. entities and asking "Why should we negotiate with the government of Iraq at all? . . . I don't see that they have any business in this" and the Iraqi Ambassador to the U.S., Lukman Faily, responding that "this was an agreement, a legal agreement, agreed with the [CPA] back in 2003 and it's owned by the Iraqi government," both of which are overstatements.

Contrary to Rep. Nadler's assertions, there is, of course, a second letter "agreement" directly between the Iraqi Ministry of Culture of and the CPA in which Iraq agreed to the removal of the archive "on the condition that" the "documents are returned to Iraq."  Moreover, Nadler's characterizations of the CPA, which was acting as occupying power in Iraq, are not necessarily consistent with the U.S. government's inconsistent, and never fully resolved, assertions regarding the precise legal status of the CPA.  See, for example, the Congressional Research Service's report, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities from 2005 which notes that U.S. government assertions about the CPA make unclear even basic facts such as whether the CPA was created by the President, CENTCOM, or a U.N. Security Council resolution.  And in any event, the CPA-NARA agreement also directly involves Iraq given that the CPA formally appointed the Iraqi Ministry of Culture its designee under the terms of the agreement (2004 Letter of Designation here).

On the other hand, neither of these "agreements" is a formal U.S. treaty and neither may constitute an "international agreement" or executive agreement under U.S. law.  I would be happy to be corrected, but I have not seen any indication that either agreement was reported to Congress pursuant to the Case Act, for example.  Regardless of the extent to which it is a "legal" agreement, however, it still would be enough to constitute a "political" commitment that the U.S. cannot simply disregard.

According to an anonymous State Department official, it appears that the State Department has already begun discussions with Iraq in order to find "a creative approach to access and sharing of these documents and materials."  While concern for diplomatic appearances may prevent either side from characterizing such discussions as a "re-negotiation" -- even if accurate -- hopefully an acceptable solution can be found in line with the goals identified in S. Res. 333 that successfully navigates all of the competing interests.