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.

Update on Possible Declassification of Seized Bin Laden Documents

Last week the House Permanent Select Committee on Intelligence held a hearing called "Worldwide Threats" that included testimony from Director of National Intelligence James Clapper, Director of the Defense Intelligence Agency Lt. Gen. Michael Flynn and others. There was a brief portion in which Representative Devin Nunes asked about the exploitation and status of the documents seized in Bin Laden's compound in Abbottabad.  Clapper indicated that he had recently met with someone from the Combating Terrorism Center at West Point - which had previously released 17 documents from the compound - in order to discuss "what we could do to move out, move ahead on declassifying these captured documents" and that there is "a good reason for us to declassify to the extent that we can" to "make this available more widely for academic research."

A video of the full hearing is available here and the relevant portion is isolated in video here and transcript is below:

REP. DEVIN NUNES: Thank you Mr. Chairman. Director Clapper, I remain concerned about the files from the Abbottabad raid. Specifically, what is it, what has been done with it, where is it and what more is being done with it? Maybe some of this we can get into in closed session as to the specifics, but I'd like for you just to kind of give an assessment from your perspective of the different agencies that fall under you. How would you grade the intelligence community's job that they've done with these files in terms of combing through all of them and doing a thorough job? If you could just kind of give a basic assessment grade of what's been done so far.

DIR. JAMES CLAPPER: Well, I would say at least a B+ or A-. I think to start with, when the, in the immediate aftermath of the raid, we established a 7 by 24 joint task force composed of nine components of the intelligence community to, as soon as we receive the media from the raid, to triage it and it was clearly a community effort and to go through it as quickly as we could to determine if there were any immediate threats or threat plotting. So the executive agent for the documents is the CIA and they continue to look at the material. As well at CENTCOM an organization originally established by the then commander of CENTCOM, General Petraeus, was a center of excellence, which is now part of the Director of Intelligence J2 operation, is going through on a very, very detailed basis, all the documents to, almost in an academic research context to read out any further findings from these documents that might bear on a threat. I recently met with, along with the deputy of NCTC, National Counterterrorism Center - with a representative from the Combating Terrorism Center at the United States Military Academy at West Point, about what we could do to move out, move ahead on declassifying these captured documents, since there was a tranche of about 17 documents totaling 300 pages that were released immediately to this organization. And I do think there is a good call, a good reason for us to declassify to the extent that we can and we don't in any way justify current operations, current intelligence, U.S. intelligence operations or sources or methods, and to make this available more widely for academic research.

REP. DEVIN NUNES: Well, I'd like to make myself available. I'd like to see some of this raw intelligence if possible. I mean, that may answer some of my questions in terms of if somebody could walk me all the way through it, exactly what it is and what you guys have been doing with it. Would that be possible? 

DIR. JAMES CLAPPER: Well, there were at least 400, over 400 intelligence reports that were issued in the initial aftermath, immediately after the raid. I don't know what that number is since then. 

REP. DEVIN NUNES: And I think you know what I'm getting at, right? There's been some rumors in the press and stories in the press that the administration has used these documents to basically, instead of connect the dots that al Qaida is continuing to flourish around the globe, or the greater al Qaida network, it's been used to disconnect the dots, And, I just want to put that to bed because I have great confidence in you and all of the agencies, and think it's our job as members of the oversight committee to make sure that we put these rumors to rest out in the public. 

DIR. JAMES CLAPPER: I haven't, to be candid, I haven't heard that, but I certainly can arrange a briefing for you on how these documents have been managed from the time they were acquired. 

REP. DEVIN NUNES: OK. Well, I appreciate that. 

GEN. MICHAEL FLYNN: If I could, yeah, just because the director mentioned the efforts by Central Command, one of the things that I can assure everybody is that the secondary exploitation, if you will, the sort of the second phase of what we're doing to take this amount, these, this exploited information that is being shared around, certainly in our military channels and I know throughout the intelligence community, for any lessons learned, any things that we can take away from that, not only with Central Command, but with our Africa Command, with our European Command and other certainly military organizations around the world. So the, and I don't have the number off the top of my head, but I know that there have been hundreds of additional reports that have been subsequently published that has allowed us to understand what we have been facing for some time. And I would add that as the, as Director Brennan said earlier, we are a learning organization and we absolutely take the kinds of information that we're getting out of this reporting to learn and to continue to adapt. 

REP. DEVIN NUNES: Well, thank you, General Flynn.

Where are the Original Seized Grenada Documents?

Two interesting new developments related to documents seized by U.S. forces in Grenada in 1983 during Operation Urgent Fury - one is a fully declassified National Security Directive newly available online and the second are meeting notes recently obtained via FOIA that indicate that at least some original documents from Grenada remain at the U.S. National Archives.  But first a quick administrative note: beginning with this post I am experimenting with enabling comments at the bottom of the post after receiving requests from some readers.

(1) Reagan's Fully Declassified National Security Decision Directive No. 112 Now Available Online

A big thanks to Steven Aftergood who alerted me to a new, fully declassified version of a November 1983 National Security Decision Directive signed by President Ronald Reagan called "Processing and Disposition of Documents Acquired by US Forces in Grenada" that is now available online from the Federation of American Scientists here.

An earlier redacted version that has been online for years (available here) already provided an interesting illustration of the breadth of issues for which the captured documents from Grenada were thought to be relevant.  The three paragraphs that were redacted in the earlier version, but which are available now, relate to the following issues:

First, is the issue of U.S. classified documents found among the documents captured in Grenada:

This may have been redacted given that such documents could present special sensitivities as they could be relevant to counterintelligence investigations, including the possibility that someone within the U.S. government had provided access to them.  A related issue came up when the interagency intelligence exploitation team -- assembled pursuant to Reagan's directive -- submitted its initial evaluation of the captured documents in December 1983.  In the last paragraph of a cover memo (available here) from Robert Gates, then Chairman of the National Intelligence Council, to Robert MacFarlane, then Assistant to the President for National Security Affairs, Gates noted:

Mr. Roy Godson of your staff informed us that there was great interest in the "American" connection to the documents. We have discussed this with the FBI liaison contact and propose that you task the Attorney General directly with pursuing this issue. We do not think a discussion of the involvement of US citizens in Grenada should be included in any paper prepared by the Intelligence Community.

The initial version of the "Interagency Intelligence Assessment" enclosed with that memo entitled "Grenada: A First Look at Mechanisms of Control and Foreign Involvement" is here and a later updated version from August 1984 is here (both courtesy of the CIA FOIA reading room).

Second, there is a previously redacted paragraph dealing with the interesting topic of forensic examination of the captured documents including even the type of paper and ink used:

This provides another example of a situation in which copies of captured documents are inadequate substitutes for originals. As discussed in an earlier post, the forensic exploitation of captured documents and media has been increasing in importance over time.  See, as an example, this FBI  Laboratory report from 2008 about documents seized from Afghanistan.

Third, the final, previously-redacted paragraph relates to the question of returning the documents:

The issue of the return of the documents leads to the second development . . .

(2) Original Seized Grenada Documents Still at U.S. National Archives?

The original documents seized in Grenada were, according to everything I had ever seen, returned to Grenada long ago.  No less than The Guide to Federal Records in the National Archives of the United States expressly states in a note in RG 373: "The original Grenada documents have been returned to the Grenadan government" (microfiche copies are in RG 242).  There has been a bit of a mystery about what happened to them upon their return - see, for example, the Grenada Revolution Online's informative page on the documents here which states: 

Rumor at one point put the original Grenada documents in Grenada around August 1985 and housed at Police Headquarters. Since that time was the damaging passing over Grenada of Hurricane Ivan, 7 September 2004. The location, condition and accession of the original Grenada Documents remains obscured, to say the least.

Given this, it came as quite a surprise when I recently received some documents via FOIA that included notes from recent meetings involving the National Archives that contained notations such as this:

and this:

which appear to indicate that there are original Grenada records at Archives II in College Park.  The note "why are the originals here" even suggests some surprise on behalf of the undisclosed notetaker.

To be clear, this is not necessarily inconsistent with the return of most, if not almost all, of the originals to Grenada. The notes above could perhaps be referring to a small number of documents that may have been withheld from the original return -- possibly for some of the same reasons the passages in Reagan's directive had been redacted or based on other "national security" concerns.  There is also a State Department records schedule, N1-353-90-3 (available here), related to a "Grenada Task Force" that identifies "3-4 feet" of captured documents (perhaps original) that were transferred to NARA, which could provide another explanation:

Despite these possible explanations, the notes nevertheless raise some interesting questions that would profit from clarification. If anyone has additional information about original Grenada documents in the U.S. or the fate of those returned to Grenada, I'd be grateful to hear from you.

DIA's New RFI for "Technical Exploitation Support"

Spencer Ackerman at Danger Room has a post called "SpyPhone: Pentagon Spooks Want New Tools for Mobile 'Exploitation'" (available here) that focuses on an interesting new Defense Intelligence Agency (DIA) Request for Information (RFI) up on the Federal Business Opportunities website called "Technical Exploitation Support."

Ackerman's discussion of the RFI begins:

The Pentagon wants to upgrade its spy corps. And one of its first jobs will be finding out what’s on your iPhone.

If the Defense Intelligence Agency (DIA) gets its way, it’ll send an expanded cadre of spies around the world to scope out threats to the U.S. military. And it won’t just be a larger spy team, it’ll be a geekier one. The DIA wants “technical exploitation” tools that can efficiently access the data of people the military believes to be dangerous once their spies collect it.

 Ackerman notes that one of the areas stressed in the RFI is

“captured/seized media.” Think, for instance, of all the flash drives, hard drives and CDs that Navy SEALs seized during the raid that killed Osama bin Laden. Flynn wants to understand both the text they’d contain, through “automation support to enable rapid triage,” and their subtexts or metadata, using “steganography” tools to decipher coded messages and “deep analysis of malicious code/executables.” And that’s on top of “deep hardware exploitation of complex media with storage capacity” and reverse-engineering tools “to discover firmware artifacts.”

The RFI's own summary notes:

The broad objective of this requirement is to provide exploitation capabilities and technical support services to Document and Media Exploitation (DOMEX) programs for the collection and dissemination of intelligence. This objective is completed by acquiring electronic media devices; conduct screening and exploitation of these devices, in addition to translate, analyze, and report on the information/intelligence derived from these devices. Finally reports must be created and database records ingested into local and national databases; both and made readily available to analysts from the tactical to national levels.

The full RFI is available from the FedBizOpps.gov website, but as it will eventually disappear from there, I have re-posted it here. Responses are due by January 4, 2013.

The Full AlSabri Opinion Released

The D.C. Circuit in Alsabri released its full opinion, available here (thanks Lawfare), late last week. It is unredacted and also unsurprising.

As revealed its the earlier one-page judgment, the Circuit upheld Judge Urbina's lower court decision that held that Alsabri was lawfully detained.  I previously discussed Judge Urbina's evaluation of the 92-page collection of captured documents, AFGP-2002-800321 (originals and translations), including his assessment of the authenticity and reliability of the documents and the importance, in my view, of separately considering the context of individual pages and the value of consulting the original documents. I ended by stating that it was "unclear what, if anything, the D.C. Circuit might make of these issues."

In its opinion, the D.C. Circuit does briefly discuss the captured documents, but largely avoids substantively examining the issues they raise in any depth by applying a highly deferential "clearly erroneous" standard to its evaluation of Judge Urbina's decision.  In a passage that seems to confirm that only English translations were consulted, the Circuit summarizes that:

the government introduced evidence that Alsabri did in fact receive weapons training. The principal evidence was an English-language translation of a 92-page collection of documents that the government maintains were internal Taliban or al Qaeda records. A Defense Intelligence Agency (DIA) record, which the government submitted as a supplemental exhibit, indicates that the documents were captured by Coalition forces from the "Director of Al-Qa'ida Security Training Office," and are "similar to other materials recovered from enemy forces."

The Circuit then notes that "Alsabri contends that the district court erred in concluding that the records of scheduled and completed training refer to him." It does not engage the arguments in detail, however, but rather simply holds that "the district court did not clearly err in finding that the documents refer to Alsabri."

In a footnote the Circuit Court also notes that Alsabri specifically took issue with Judge Urbina's characterization of a list of "arriving brothers" as a "training roster" when not even the government had argued that the "arriving brothers" were necessarily "arriving" to a training camp.  On this point the Circuit commits, in my view, the same error as Judge Urbina and assumes that because the 92 pages of documents form part of AFGP-2002-800321 in the Harmony database they necessarily are related to one another rather than being, as Alsabri had argued (and the originals provide some support), a "hodgepodge of materials."  Specifically, the Circuit states that "[g]iven the context provided by the remainder of the documents" Judge Urbina's "characterization of the list is not clearly erroneous." The "context" on which the Circuit is relying here may unfortunately be nothing more than an artificial context created by the individual that chose to scan these 92 pages together as one file and assign one Harmony number (for an explanation of that process, see the Standard Operating Procedures for the Combined Media Processing Center in Qatar available here).

Lt. Gen. Flynn Nominated for Director of DIA

The DoD announced yesterday (thanks Danger Room) that the President has nominated Army Lt. Gen. Michael T. Flynn to be the new Director of the Defense Intelligence Agency (DIA).  This is of potential interest both generally because of the central role of the DIA in document exploitation and captured document issues, but also because of Flynn's background.

Spencer Ackerman's piece on Danger Room on the nomination is entitled "Military Intelligence Gadfly Will Lead All Military Intelligence," which states that the "first time most people outside the shadows heard of Flynn, he was loudly complaining that military intelligence in Afghanistan sucked." He also states that Flynn

helped transform the culture of the Joint Special Operations Command (JSOC), getting its elite commandos to believe that collecting crucial clues from raids on terrorists was central to their missions. Although Flynn and his patron, Gen. Stanley McChrystal, left JSOC years before the attack on Osama bin Laden, the fact that the Navy SEALs left bin Laden’s Abbottabad compound with hundreds of thumb drives, cellphones and hard drives is part of their legacy.

It might be a bit of an overstatement to attribute the use of the traditional tactic of seizing documents and media to any recent "legacy," but, as fleshed out in more nuance in an earlier interview by Ackerman of Marc Ambinder, Flynn had pushed the importance of using such tactics within JSOC as well as improving their efficacy with a focus both on speed and preserving context.  As Ambinder (author, along with D.B. Grady, of "The Command: Deep Inside the President's Secret Army") stated regarding Flynn,

he would observe your average JSOC operation and you would see insurgents, or whomever, rounded up, put in the same room, with all the stuff they had in their hands, all the pocket litter, would be separated and just kept in a trash bag. And it was brought back to one of the other bases for processing. That was way too inefficient and way too slow for the operational tempo of the insurgents. In his mind, Flynn envisioned the insurgency to be this ever-expanding spider’s web, and the U.S. military would be like this tiny mouse, clawing at one end of it. And you needed to speed up.

*  *  *  * 

Some of the tactics were as simple as equipping your tier-one operators — i.e., a Delta Force shooter or a SEAL Team Six demolition expert, the elite of the elite — with a camera. Instead of rounding up insurgents, bringing them to one area of a house, they’d have pictures of them exactly where they are, and take pictures what they have on them exactly. They’d keep them with their pocket litter until they were processed. And they’d send pictures back in real time to an intelligence fusion center. 

Regarding the nomination, Ackerman quotes the great Steven Aftergood at the Federal of American Scientists speculating that the "appointment may signal a revival of DIA, or at least some upheaval." Ackerman ends by noting that Flynn is "probably not done breaking the spy community's furniture."

The Destruction of the Desert Storm Documents

Based in part on records recently obtained via FOIA that have not been previously released publicly, this is a brief account of the fate of records captured from the Iraqi military during Operation Desert Storm in 1991. As described below, the originals were destroyed by the Defense Intelligence Agency (DIA) in 2002 due to mold contamination, while digital copies of a portion of the documents are at the Hoover Institution at Stanford, but are not currently open for research.

Capture, Processing & Exploitation of the Desert Storm Documents

The documents captured by U.S. forces from the Iraqi military during Desert Storm have been variously, and inconsistently, measured as "12 million pages" (in a 1994 NARA technical review of U.S. Army operations), "approximately 4 million pages" or "400 boxes" (in a 2002 DIA memo) or "300 cubic feet" (in a 2002 NARA report).

As the latter report noted: "U.S. troops literally swept up these documents as they moved through Kuwait and Iraq, removing paper documents from every possible source, from buildings to the pockets of dead soldiers."  On the extent of the collection, NARA stated:

The documents date from 1978 up until Operation Desert Storm (1991). The collection includes Iraq operations plans and orders; maps and overlays; unit rosters (including photographs); manuals covering tactics, camouflage, equipment, and doctrine; equipment maintenance logs; ammunition inventories; unit punishment records; unit pay and leave records; handling of prisoners of war; detainee lists; lists of captured vehicles; and other military records. The collection also includes some manuals of foreign, non-Iraqi weapons systems. Some of Saddam Hussein's Revolutionary Command Council records are in the captured material.

The collection also "includes records of the Gulf Cooperation Council," which, I earlier speculated, may be documents the Iraqis seized from the Kuwaiti government.

NARA's 1994 review described a military order issued on Jan. 26, 1991 "to develop an imaging system for captured Gulf War documents." Within 24 hours the Army's Decision Systems Management Agency had "developed system specifications and briefed senior officers, who authorized procurement."  Thus began the U.S. Army's DOCEX system.

The digital conversion of the "12 million pages" was performed in Kuwait and Saudi Arabia with Kodak scanners and IBM computers.  They were scanned in TIFF4 format and stored on Digital Audio Tapes (DAT).  Translators "perused each document and annotated work sheets with keyword information, such as the date of capture, location where the document was found, and type of document."  An index database was also created that "formed the basis of a paper index" used to "access the records."

The DIA led the analysis and exploitation of the captured documents which resulted in "approximately 495 Intelligence Information Reports (IIRs) . . . while U.S. troops were deployed in Kuwait and Iraq."  After the war, military reservists "produced an unknown number of additional reports under DIA auspices." The importance of the captured documents for intelligence purposes predictably decreased over time and within several years after the war "both the paper records and digital images," which remained in DIA custody, "were largely unused."

U.S. State Department and Iraqi War Crimes

Unfortunately, the decreasing intelligence value also appears to have influenced the plans for maintaining the digital collection. The 1994 NARA report noted under "Migration Plans" that "Due to the short term intelligence value of the DOCEX records, no need exists to migrate the image and/or index data." The long-term value of the digital collection and index for other purposes was apparently not considered, although it was foreseeable.  As a NARA archivist later noted:

These records are of the type which researchers will want to see when working on the Desert Shield/Desert Storm era. Similar records relating to Germany, Japan, Italy, Korea, and Vietnam are heavily used.

In fact, in the "late 1990s" the State Department contacted the DIA and "expressed interest in looking at some of the documents."  It appears this was part of a State Department push, following the Iraq Liberation Act of 1998 (which called upon the U.N. to establish an international criminal tribunal for Iraq) to build a case for war crimes and crimes against humanity against Saddam Hussein. In a September 2000 speech, the Ambassador-at-Large for War Crimes Issues in the Clinton Administration, David J. Scheffer, stated that the "primary objective" was to see Saddam and "the leadership of the Iraqi regime indicted and prosecuted by an international criminal tribunal." As part of that project Scheffer described the "archive of millions of pages of documents captured by U.S. forces in Kuwait and southern Iraq during Operation Desert Storm" and stated that the U.S. was "working to declassify these documents."

Digital Corruption, Mold Contamination & Destruction

When the DIA examined the Desert Storm documents in response to the State Department's request, however, it found that "the DAT tapes had become corrupted and that only 60% of the documents could be read."  Moreover, "the database used to track the records had become corrupted and was inaccessible beyond recovery, leaving only the paper index remaining."

Given that the original hardcopy documents were still in DIA custody, the DIA began a new "scanning project to re-scan the 40% of the documents that had been lost." It is unclear exactly where, or under what conditions, the original documents were stored other than in "temporary storage" in the U.S. within DIA "office space." During the scanning project, however,

several DIA staff members were taken ill due to exposure to the records. The Department of Defense conducted a test of the records and determined that the paper documents were contaminated with "U.S. origin mold" that can cause conjunctivitis, rhinitis, bronchitis, skin, rash, asthma, and hypersensitivity pneumonitis in susceptible individuals.

As a NARA archivist later noted, "the presence of 'U.S. origin mold' does not say much for their maintenance under U.S. Control." A contractor was hired to scan the remaining images and placed all of them (the original 60% plus the re-scanned 40%) in TIFF6 format on 43 CD-ROMS.

Thereafter, the DIA submitted an SF-115 schedule, job number N1-373-02-03, in May 2002 to NARA and requested authority to destroy the contaminated original records.

Captured Iraqi Document Exploitation SOP

At some point recently the DIA, which the FOIA requester community has often viewed as rather tight-fisted, added to its FOIA Reading Room an extremely valuable resource in the form of the Standing Operating Procedures for the Combined Media Processing Center-Qatar, the primary facility for document exploitation operations for documents seized in Iraq.

The DIA's link to the document is here, but I have also reposted that document here (and due to some odd formatting issues in the DIA's original I have also posted a printed, rescanned and searchable OCR'd version here (warning, both versions are large files)).

The significance of the document comes from its exceedingly detailed (and completely unredacted) coverage of the processing of captured documents, including the use of the DOCEX Suite, the assignment and meaning of HARMONY numbers, and the triage and translation process. As far as I am aware this level of detail has never been released publicly anywhere before.

On a first reading, the single most significant part in my view is Appendix D, which provides detailed and substantive Triage Guidelines. These are prioritized subject categories that reviewers were supposed to be on the look out for when reviewing the documents (for more on Triage, called "the most critical step in the exploitation process," see Section 2.3).  Appendix D notes that its guidelines are current as of March 10, 2004.

Unsurprisingly, the first Triage Guideline category is WMD.  Others include "Regime Strategic Intent," "War Crimes and Crimes Against Humanity," "Counterintelligence Information" (including "Information on Australian, British, Canadian, and U.S. Nationals"), "Terrorist Organizations and Operatives" (in which is included "MOIS/IRGC/SCIRI/BADR Corps").

Another rather interesting category is "Procurement" which focuses on "Business deals with domestic and foreign companies," "Australian and British persons, entities, and corporations," "Financial records from Jordan, Iraq, Lebanon, and Syria," "U.S. persons, entities, and corporations," and "Contracts, offers, or tenders from North Korea, Pakistan, India, Libya, South Africa, Yemen, Turkey, European countries, and former Soviet states."

An interesting omission from the triage categories is information about Kuwait's missing national archives, which is noteworthy because, according to a 2003 report by the U.N. Secretary General, the United States informed the Security Council that it had established a "special group" that was "entrusted with searching for the stolen Kuwaiti archives." The same "special group" was also tasked with searching for "Kuwaiti and third-country nationals missing since the Gulf War" which is explicitly covered in the triage guidelines under "Prisoners of War from the Gulf War."

There is also a sub-category for "Scott Speicher" and the DIA has also recently uploaded to its FOIA page an extensive report on the Iraq Survey Group's support to the CAPT Speicher investigation.

Other aspects of the CMPC's SOP will be highlighted in future posts, but one final aspect worth mentioning is that at the very end of the electronic file is some bonus coverage in the form of powerpoint slides from 2008 regarding "Integrated Linguist Activity - Doha" or "ILiAD" including the role of the DIA, the CMPC, the Open Source Center, and the National Virtual Translation Center.

Alsabri v. Obama: Captured Documents in Court

A Guantanamo case currently awaiting an appellate decision from the D.C. Circuit, Alsabri v. Obama, illustrates the difficulty of using captured documents as evidence. Thus far public analysis of the captured documents angle in the case, however, has been lacking for a very good reason: heavy redactions.

The 92-page collection of captured documents referenced both in Judge Urbina's redacted February 2011 District Court opinion (denying Alsabri’s habeas petition) and in the parties’ redacted appellate briefs - appellant brief, appellee brief, appellant reply (thanks Lawfare) - is completely redacted in the government factual return publicly filed in 2009 (save for page numbers). However, in another striking example of inconsistent redactions in GTMO filings, an almost completely unredacted version of the full 92-page collection - AFGP-2002-800321 - was filed in a different case (compare the 92-page redacted and unredacted filings for yourself). This allows one to fill in many redacted holes in the opinion and briefs.

While there are many other issues and other evidence in the case that may determine the ultimate result (and giving the D.C. Circuit the benefit of the doubt that results in detainee habeas cases are not always inflexibly predetermined - see, e.g., Silberman's concurrence), the captured documents are a uniquely central issue in the litigation.

Judge Urbina on Context, Authenticity, and Reliability of Captured Documents

During the habeas hearing before Judge Urbina, Alsabri’s attorneys argued that the government had never provided any source or contextual information for the 92-pages of documents that became “Government Exhibit 29” or - in Judge Urbina’s opinion - the “AFGP Documents.” At the hearing, however, the government suddenly provided for the first time a DIA record (the admissibility of which is an issue on appeal) that stated that “the AFGP Documents consist of English-language translations of Arabic-language documents captured by coalition forces during Operation Enduring Freedom” and that the record “seem[ed] to reflect” they were recovered from the “Director of Al-Qa’ida Security Training Office” and that the DIA, “which prepared the translation,” indicated that they “contain[] [t]he names of the students admitted to the training in the tactics of [a]rtillery, communication, infantry and their distribution.”

Based, in part, on the “DIA record indicating that the exhibit represents a DIA translation of training records,” Judge Urbina rejected Alsabri’s argument that the government had “not established the reliability of the AFGP Documents.” Further, while Judge Urbina noted that the failure of the DIA record to specify “when and where the AFGP Documents were recovered” was “significant,” he nevertheless found that the absence of such information did “not necessarily undermine the reliability of the AFGP Documents.”

In the end, Judge Urbina held that there was “substantial evidence” of the “authenticity and reliability” of the AFGP Documents and that “[t]hese internal al-Qaida records indicate that after applying to attend an al-Qaida training camp, [Alsabri] did, in fact, receive such training.” Based, in part, on this evidence, Judge Urbina denied Alsabri’s habeas petition. Al-Sabri appealed.

Three Entries in the 92-Pages of Captured Documents

An evaluation of Judge Urbina’s treatment of the captured documents becomes more interesting when the details on which the government relies are fleshed out in the appellate filings and in the unredacted version of the documents. Three pages are at issue.

More on Finding Kuwait's Missing National Archives

I have a piece called "Finding Kuwait's Missing National Archives" this morning on JURIST that discusses the new Iraq's continuing responsibility under a Saddam-era U.N. Security Council resolution to find and repatriate Kuwait's national archives that have been missing since Saddam's 1990 invasion.  I wanted to add here a few brief thoughts on strategies for the continued search for the archives:

1. Kuwait Should Clarify What Archives are Still Missing

According to a Wikileaks cable, Ambassador Gennady Tarasov, the U.N. high-level Coordinator overseeing the issue of the missing archives, noted in 2009 that the Iraqi search was hindered by "the lack of a GOK [Government of Kuwait] inventory or description of what the missing archives look like." Back in 2000, Kuwait actually did provide this 2-page list that purported to describe the type and volume of the missing archives. Kuwait should nevertheless update this list given that documents have been returned in the interim (see 2 and 4 below). As further support, Security Council Resolution 687 required the Secretary-General to report on "a list of any property that Kuwait claims has not been returned by Iraq" (emphasis mine). As in other cases of displaced government records, there may be a disincentive for Kuwait to describe the missing archives in too much detail lest they lose the ability to deny the authenticity of documents that might surface.  Ambassador Tarasov's predecessor as U.N. Coordinator, Ambassador Yuli Vorontsov, for example, appears in a 2007 Wikileaks cable telling the U.S. Embassy in Kuwait that Kuwait remained "focused primarily on the return of missing Kuwaiti government archives" because the "Kuwaitis are nervous that sensitive government records may still emerge in Iraq with the potential to cause embarrassment to" Kuwait.

2. Access to Documents Seized in Iraq that Remain in Exclusive U.S. Custody

Were I representing Iraq, I would try to use the continuing Security Council mandate as a sword in its negotiations with the U.S. State and Defense Departments over the return of Iraqi documents seized by U.S. forces, which have thus far been unsuccessful.  As I argue in the JURIST piece, the best place to locate new leads on the missing Kuwaiti archives has to be in the records of Saddam's government, a significant portion of which remain in exclusive U.S. custody.  

Smoking gun evidence of a connection is this 2007 Wikileaks cable entitled "Repatriating Kuwaiti Documents to the GOK" noting that the U.S. Embassy in Kuwait had "received permission" to:

release to the GOK two boxes of Kuwaiti documents, ranging from UNCLASS to KUWAITI TOP SECRET, from the Combined Media Processing Center (CMPC) in Qatar. According to CMPC, all of the documents were gathered in Iraq during OIF and are from 1990 or before.

(this situation was briefly described in this U.N. Secretary-General Report (para. 17)).  Does this mean that the seized documents were thoroughly searched for any information about the Kuwaiti archives and these two boxes were the final result, or is this potentially the tip of the iceberg?  Support for the latter possibility is that this was 2007 and as of 2006 less than 15% of the seized documents had been fully translated. In 2009, Secretary of State Clinton stated in a letter (Wikileaks version here) to the U.N. that "at this time we have no information" about the Kuwait archives which is something less than a representation that the U.S. had exhaustively searched the seized documents from Iraq.  Also, even if they were thoroughly searched that doesn't necessarily mean the seized documents, when combined with other Saddam-era documents that remain in Iraq to provide relevant context, could not produce new information not apparent when the documents were examined independently.

At the very least, Iraq or Ambassador Tarasov should ask the U.S. whether they have Harmony database coversheets for the Kuwaiti documents previously located at the CMPC which could provide extremely specific details about where and when they were seized, like this:

3. Records of U.S. Interrogations of Detained Officials from Saddam's Government

Iraq should also demand from the U.S. copies of any relevant interrogation reports of Ba'ath officials.  Saddam Hussein's FBI interviews, for example, are freely available here (I found only one reference to the seized Kuwaiti documents in an interview in which Saddam claims Iraq captured documents showing that Kuwait and the U.S. were in a "conspiracy" against him prior to his 1990 invasion).  Note that in Wikileaks cables here and here the former U.N. high-level Coordinator, Ambassador Vorontsov, repeatedly requested that the U.S. interrogate detained former Ba'ath officials about the missing archives - he even provided names of specific individuals who might have had information. 

4. Kuwaiti-held Records of Saddam's 2002 Repatriation of Kuwaiti Documents

From Oct. 20-29, 2002, Iraq actually returned to Kuwait 425 boxes and 1,158 bags of documents or archives seized by Iraq.  The handover is described in extensive detail in this U.N. Secretary General Report (esp. paras. 36-75).  The exact content of these boxes and bags, however, were never independently verified.  Iraq provided the U.N. with this letter that listed in the annex the documents it claimed it was returning.  According to the U.N., Iraq also provided detailed packing lists to Kuwait. The questionable handover procedures, however, allowed neither U.N. nor Arab League representatives who were present to examine the documents.  Therefore, what Saddam's Iraq handed over was essentially a black box (or rather 425 of them), the contents of which no one, other than Iraqi officials under Saddam Hussein and Kuwaiti officials, could possibly confirm.

Kuwait later claimed, with precious little detail, that the returned documents were simply "routine papers" that could not be "regarded as the archives of the State," an arguably questionable assertion that the Security Council simply accepted without scrutiny on the basis that Kuwait was "uniquely positioned to ascertain whether Iraq had returned all the documents taken by Iraq, including the return of its national archives."  Kuwait should be asked to provide the Iraqi packing lists as well as provide Ambassador Tarasov with access to the hundreds of boxes and bags worth of "routine papers" to allow verification.

In short, all sides have repeatedly declared their support for the search for Kuwait's missing archives. In "intensifying" efforts to find them (as the Security Council demands), Iraq, Ambassador Tarasov, and the Security Council should make sure that the declared support from all possible sources is legitimately forthcoming.

DOCEX/DOMEX Job Openings

Two new DOCEX/DOMEX positions with defense contractor STG, Inc. in Reston, VA were recently posted online.  One is for a Program Manager and other for a Deputy Program Manager.  Both announcements note that they relate to

an upcoming opportunity for the Defense Intelligence Agency's (DIA's) National Media Exploitation Center (NMEC). The successful candidate will have an in-depth understanding and knowledge of NMEC's mission and operational execution of document and media exploitation (DOCEX/DOMEX) operations. 

Government digital copies of IMF/Hoover documents?

The debate over the documents obtained by the Iraq Memory Foundation from Ba'ath Party Headquarters in Iraq and that are now on deposit at the Hoover Institution at Stanford is epic.

Access to the documents at Hoover requires physically traveling to Stanford and signing an agreement available here, that, among other things, forbids "commentary for public use in print media or over the Internet that uses or quotes from the IMF Collection without prior written permission from Mr. Kanan Makiya of the Iraq Memory Foundation." There are certainly important and valid reasons for restrictions on access to, and disclosure of, these documents given that they contain, among other things, personal information on victims. Restrictions on access to government documents that require such personal written permission from a specific individual, however, seems a bit odd.  I was therefore interested in a detail in a Chronicle of Higher Education piece that said the following (emphasis mine):

According to Hassan Mneimneh, director of the Iraq Memory Foundation's documentation project, the group reached an agreement with the U.S. military in February 2005 to have the documents shipped to the United States, where government contractors would complete the digitizing process at a much faster rate. That agreement also provided for the U.S. government to keep a digital copy of the collection.

I had assumed the most likely government entity to hold that digital copy would be the DIA. Therefore I requested via FOIA last year a sampling of these records on the basis that, regardless of the ownership of the original documents, the digital copies in the possession of the government ought to constitute agency records within the meaning of FOIA.  Morever, access to the government copies would be governed by established FOIA standards for redaction and withholding rather than by the personal restrictions at Hoover.

After more than a year and a half, I finally received the response below indicating that "no documents responsive to your request were found."  Perhaps the search conducted was inadequate or perhaps the DIA is not the governmental entity that has custody of the digital copies after all.  Not knowing which specific agency has custody or authority over seized records is a recurring obstacle.