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This is important for several reasons, not least of which is that it might mean that it is now permissible to release the vast majority of the complete, 6000-or-so-page SSCI Report. One other thing:  The motion relates that in April 2012, in support of the Government’s motion requesting that Judge Pohl issue the protective order, the accompanying declarations of government officials set forth the “grave harm to national security that unauthorized disclosure of such information would cause.”  I think it’s fair to say, now that such information has been disclosed, that these alarms were unwarranted and ill-advised.  No grave harm has befallen the nation.  And so it appears, at least, as though there never was a very good reason why these important categories of information about the RDI program could not and should not have been disclosed years ago.

Through its general, indiscriminate searches and seizures of the plaintiffs’ communications, upstream surveillance invades their Fourth Amendment right to privacy, infringes on their First Amendment rights to free expression and association, and exceeds the statutory limits of the FAA itself. The nature of plaintiffs' work and the law’s permissive guidelines for targeting make it likely that the NSA is also retaining and reading their communications, from email exchanges between Amnesty staff and activists, to Wikipedia browsing by readers abroad. The ACLU litigated an earlier challenge to surveillance conducted under the FAA – Clapper v. Amnesty – which was filed less than an hour after President Bush signed the FAA into law in 2008. In a 5-4 vote, the Supreme Court dismissed the case in February 2013 on the grounds that the plaintiffs could not prove they had been spied on. Edward Snowden has said that the ruling contributed to his decision to expose the full scope of NSA surveillance a few months later. Among his disclosures was upstream surveillance, the existence of which was later confirmed by the government.

"The presumption of openness requires the presumption of posting," said Archive director Tom Blanton. "For the new generation, if it's not online, it does not exist." The National Security Archive has conducted fourteen FOIA Audits since 2002. Modeled after the California Sunshine Survey and subsequent state "FOI Audits," the Archive's FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Recommendations from previous Archive FOIA Audits have led directly to laws and executive orders which have: set explicit customer service guidelines, mandated FOIA backlog reduction, assigned individualized FOIA tracking numbers, forced agencies to report the average number of days needed to process requests, and revealed the (often embarrassing) ages of the oldest pending FOIA requests. The surveys include:

The federal government has made some progress moving into the digital era. The National Security Archive's last E-FOIA Audit in 2007, " File Not Found," reported that only one in five federal agencies had put online all of the specific requirements mentioned in the E-FOIA amendments, such as guidance on making requests, contact information, and processing regulations. The new E-FOIA Audit finds the number of agencies that have checked those boxes is now much higher — 100 out of 165 — though many (66 in 165) have posted just the bare minimum, especially when posting FOIA responses. An additional 33 agencies even now do not post these types of records at all, clearly thwarting the law's intent.

The FOIAonline Members (Department of Commerce, Environmental Protection Agency, Federal Labor Relations Authority, Merit Systems Protection Board, National Archives and Records Administration, Pension Benefit Guaranty Corporation, Department of the Navy, General Services Administration, Small Business Administration, U.S. Citizenship and Immigration Services, and Federal Communications Commission) won their "E-Star" by making past requests and releases searchable via FOIAonline. FOIAonline also allows users to submit their FOIA requests digitally.

THE E-DELINQUENTS: WORST OVERALL AGENCIES In alphabetical order

Key Findings

Excuses Agencies Give for Poor E-Performance

Justice Department guidance undermines the statute. Currently, the FOIA stipulates that documents "likely to become the subject of subsequent requests" must be posted by agencies somewhere in their electronic reading rooms. The Department of Justice's Office of Information Policy defines these records as "frequently requested records… or those which have been released three or more times to FOIA requesters." Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law. Troublingly, both the current House and Senate FOIA bills include language that codifies the instructions from the Department of Justice. The National Security Archive believes the addition of this "three or more times" language actually harms the intent of the Freedom of Information Act as it will give agencies an easy excuse ("not requested three times yet!") not to proactively post documents that agency FOIA offices have already spent time, money, and energy processing. We have formally suggested alternate language requiring that agencies generally post "all records, regardless of form or format that have been released in response to a FOIA request."

Disabilities Compliance. Despite the E-FOIA Act, many government agencies do not embrace the idea of posting their FOIA responses online. The most common reason agencies give is that it is difficult to post documents in a format that complies with the Americans with Disabilities Act, also referred to as being "508 compliant," and the 1998 Amendments to the Rehabilitation Act that require federal agencies "to make their electronic and information technology (EIT) accessible to people with disabilities." E-Star agencies, however, have proven that 508 compliance is no barrier when the agency has a will to post. All documents posted on FOIAonline are 508 compliant, as are the documents posted by the Department of Defense and the Department of State. In fact, every document created electronically by the US government after 1998 should already be 508 compliant. Even old paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat, according to this Department of Homeland Security guide (essentially OCRing the text, and including information about where non-textual fields appear). Even if agencies are insistent it is too difficult to OCR older documents that were scanned from paper, they cannot use that excuse with digital records.

Privacy. Another commonly articulated concern about posting FOIA releases online is that doing so could inadvertently disclose private information from "first person" FOIA requests. This is a valid concern, and this subset of FOIA requests should not be posted online. (The Justice Department identified "first party" requester rights in 1989. Essentially agencies cannot use the b(6) privacy exemption to redact information if a person requests it for him or herself. An example of a "first person" FOIA would be a person's request for his own immigration file.) Cost and Waste of Resources. There is also a belief that there is little public interest in the majority of FOIA requests processed, and hence it is a waste of resources to post them. This thinking runs counter to the governing principle of the Freedom of Information Act: that government information belongs to US citizens, not US agencies. As such, the reason that a person requests information is immaterial as the agency processes the request; the "interest factor" of a document should also be immaterial when an agency is required to post it online. Some think that posting FOIA releases online is not cost effective. In fact, the opposite is true. It's not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail it to the requester and have them slip it into their desk drawer and forget about it. That is a waste of resources. The released document should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track. The State Department earned its "E-Star" status demonstrating this very principle, and spent no new funds and did not hire contractors to build its Electronic Reading Room, instead it built a self-sustaining platform that will save the agency time and money going forward.

Although Jerusalem-based officials cancelled the meeting – and subsequently decided not to recommend the IDF’s inclusion on the list – the UN complained to Israel over the intimidation of its staff. Susana Malcorra – a high-ranking official in the New York office of the UN secretary general, Ban Ki-moon – raised the issue in a private letter to Israel’s ambassador to the UN, Ron Prosor. The UN in New York said it could not comment on leaked documents. The telephone calls were made to June Kunugi, Unicef’s special representative to Palestine and Israel, on 12 February, the night before a meeting to decide whether to recommend the IDF’s inclusion on the list. One call was from a senior figure in Cogat, the Israeli government body that coordinates between the IDF, the Palestinian Authority and the international community; the other was made by an official in Israel’s foreign ministry.

ccording to UN and NGO sources, Kunugi was advised to cancel the meeting or face serious consequences. However, Israeli sources described the telephone conversations as friendly and courteous attempts to persuade Kunugi to delay the working group’s decision on its recommendation regarding the IDF until Israel had been allowed to present its case on the issue. At 8.54am the next morning, an email was sent on behalf of James Rawley, a senior official with UNSCO (the office of the UN special coordinator for the Middle East peace process) who had called the meeting, to participants. It said: “Please be informed that today’s meeting scheduled at 13:00hrs has been postponed. Sincere apologies for the inconvenience this may have caused.” A joint statement to the Guardian from Kunugi and Rawley said the “strictly confidential process” of determining inclusion on the list was still ongoing and was the “prerogative of the UN secretary general, and it rests with him alone”. The UN in Jerusalem was unable to comment on the process, it added, but the submission from Jerusalem to New York was “based on verified facts, not influenced by any member state or other entity”.

Unicef has called a fresh meeting to update UN and NGO officials in Jerusalem on Thursday. The decision on which state and non-state armed forces are to be included on the list will be taken by UN chiefs in New York next month. However, according to the UN source, “a political decision has already been taken not to include Israel”.

A separate source told the Guardian: “The UN caved to Israel’s political pressure and took a highly contentious step to shelter Israel from accountability.” The list of violators of children’s rights is contained in the annex of the annual report of the secretary general on children and armed conflict. A “monitoring and reporting mechanism”, established by a UN security council resolution, supplies information on grave violations of children’s rights, such as killing and maiming, recruitment of minors into armed forces, attacks on schools, rape, abduction, and denial of humanitarian access to children. The secretary general is required to list armed forces or armed groups responsible for such actions. Following last summer’s seven-week war in Gaza, a number of UN agencies and NGOs met to consider whether to recommend the IDF’s inclusion on the list. According to insiders, participants “agreed there is a strong and credible case to recommend listing”.

A 13-page internal Unicef paper seen by the Guardian examined the case for the IDF to be listed on the basis of its actions in last summer’s war in Gaza, including the killing and injuring of children, and “targeted and indiscriminate” attacks on schools and hospitals. Several of the working group’s participants wrote to the UN secretary general to urge the inclusion of the IDF on the list. A letter sent in December by Defence for Children International (Palestine) said: “There is ample evidence to demonstrate that Israel’s armed forces have committed acts that amount to the grave violations against children during armed conflict, as defined by UN security council resolutions, including killing or maiming children and attacks against schools and hospitals.” The Israeli ministry of foreign affairs and Cogat declined to answer specific questions about the phone calls to Kunugi, but said in a joint statement: “Israel has a good working relationship with Unicef and the United Nations in general. Israel has no desire to get into a slanging match with anti-Israel elements nor to submit to their intimidations.”

Not everyone is convinced that the report will pose a security threat.Reuel Marc Gerecht, a former CIA case officer who supports aggressive interrogations, said warnings about violent protests overseas are "make-believe." "Given the Middle east is cracking up, this [report] will not even measure on the Richter scale," he said. 

Although Miliband told MPs that detainees had not been held on Diego Garcia, others have contradicted this assertion.Manfred Nowak, as United Nations special rapporteur on torture, said he had received "credible evidence from well-placed sources familiar with the situation on the island" that CIA detainees had been held there between 2002 and 2003.General Barry McCaffrey, a former head of Southcom, the US military's southern command, has twice stated publicly that Diego Garcia has been used by the US to hold prisoners, saying in one radio interview in May 2004: "We're probably holding around 3,000 people, you know, Bagram air field, Diego Garcia, Guantánamo, 16 camps throughout Iraq."In 2003, Time magazine quoted "a regional intelligence official" as saying that a man accused of plotting the 2002 Bali nightclub bombing was being interrogated on Diego Garcia. Five years later the magazine reported that a CIA counter-terrorism official said a high-value prisoner or prisoners were being held and interrogated on the island.In August 2008, the Observer reported that former US intelligence officers "unofficially told senior Spanish judge Baltasar Garzón that Mustafa Setmarian, a Spanish-based Syrian accused of running terrorist training camps in Afghanistan, was taken to Diego Garcia in late 2005 and held there for months".

All of this is or should be obvious, but remains surprisingly unacknowledged in our American world. The rise of the Fourth Branch began at a moment of mobilization for a global conflict, World War II.  It gained heft and staying power in the Cold War of the second half of the twentieth century, when that other superpower, the Soviet Union, provided the excuse for expansion of every sort.  Its officials bided their time in the years after the fall of the Soviet Union, when “terrorism” had yet to claim the landscape and enemies were in short supply.  In the post-9/11 era, in a phony “wartime” atmosphere, fed by trillions of taxpayer dollars, and under the banner of American “safety,” it has grown to unparalleled size and power.  So much so that it sparked a building boom in and around the national capital (as well as elsewhere in the country).  In their 2010 Washington Post series “Top Secret America,” Dana Priest and William Arkin offered this thumbnail summary of the extent of that boom for the U.S. Intelligence Community: “In Washington and the surrounding area,” they wrote, “33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings -- about 17 million square feet of space.”  And in 2014, the expansion is ongoing.

In that light, let’s turn to a set of intertwined events in Washington that have largely been dealt with in the media as your typical tempest in a teapot, a catfight among the vested and powerful.  I’m talking about the various charges and countercharges, anger, outrage, and irritation, as well as news of acts of seeming illegality now swirling around a 6,300-page CIA “torture report” produced but not yet made public by the Senate Intelligence Committee.  This ongoing controversy reveals a great deal about the nature of the checks and balances on the Fourth Branch of government in 2014.

Fourteen years into the twenty-first century, we’re so used to this sort of thing that we seldom think about what it means to let the CIA -- accused of a variety of crimes -- be the agency to decide what exactly can be known by the public, in conjunction with a deferential White House.  The Agency’s present director, it should be noted, has been a close confidant and friend of the president and was for years his key counterterrorism advisor.  To get a sense of what all this really means, you need perhaps to imagine that, in 2004, the 9/11 Commission was forced to turn its report over to Osama bin Laden for vetting and redaction before releasing it to the public.  Extreme as that may sound, the CIA is no less a self-interested party. And this interminable process has yet to end, although the White House is supposed to release something, possibly heavily redacted, as early as this coming week or perhaps in the dog days of August.

The fact is that, for the Fourth Branch, this remains the age of impunity.  Hidden in a veil of secrecy, bolstered by secret law and secret courts, surrounded by its chosen corporations and politicians, its power to define policy and act as it sees fit in the name of American safety is visibly on the rise.  No matter what setbacks it experiences along the way, its urge to expand and control seems, at the moment, beyond staunching.  In the context of the Senate’s torture report, the question at hand remains: Who rules Washington?

Over the past several months, Mr. Tenet has quietly engineered a counterattack against the Senate committee’s voluminous report, which could become public next month. The effort to discredit the report has set up a three-way showdown among former C.I.A. officials who believe history has been distorted, a White House carefully managing the process and politics of declassifying the document, and Senate Democrats convinced that the Obama administration is trying to protect the C.I.A. at all costs.The report is expected to accuse a number of former C.I.A. officials of misleading Congress and the White House about the program and its effectiveness, but it is Mr. Tenet who might have the most at stake.

“While former C.I.A. officials may be working to hide their own past wrongs, there’s no reason Brennan or any other current C.I.A. official should help facilitate the defense of the indefensible,” said Christopher Anders, senior legislative counsel at the American Civil Liberties Union.Spokesmen for the C.I.A. and the White House declined to comment.

The April meeting at C.I.A. headquarters highlighted how much of the agency is still seeded with officers who participated in the detention and interrogation program, which Mr. Obama officially ended during his first week in office in 2009.At one point during the meeting, the current head of the counterterrorism center, an officer with the first name Mike, told Mr. Brennan that roughly 200 people under his leadership had at some point participated in the interrogation program. They wanted to know, he said, how Mr. Brennan planned to defend them in public against accusations that the C.I.A. engaged in systematic torture and lied about its efficacy.

Mr. Tenet resigned a decade ago amid the wash of recriminations over the C.I.A.’s botched Iraq assessments, and he has given few interviews since his book tour.

The president is “too close to Susan Rice, and John Kerry’s in the middle of Iran negotiations,” said one administration official, speaking on condition of anonymity. “So he went for the low-hanging fruit” — Mr. Hagel, who was criticized by White House aides as largely silent in meetings, and who Mr. Obama had often bypassed in recent months for Gen. Martin E. Dempsey, the chairman of the Joint Chiefs of Staff and a favorite in the West Wing.

In the view of White House officials, Mr. Hagel has helped to thwart Mr. Obama’s pledge to close Guantánamo with his concerns about the security risks posed by the release of detainees. He recently pulled back from plans to repatriate four Afghans who had been approved for transfer, a decision that annoyed Ms. Rice, officials said.Continue reading the main story White House officials also expressed annoyance over a sharply critical two-page memo that Mr. Hagel sent to Ms. Rice last month, in which he warned that the administration’s Syria policy was in danger of unraveling because of its failure to clarify its intentions toward President Bashar al-Assad. Senior officials complained that Mr. Hagel had never made such a case in internal debates, suggesting that he was trying to position himself for history on a crucial issue as he was talking to Mr. Obama about leaving his job. Mr. Hagel’s defenders said he stayed quiet to avoid leaks.

“The next couple of years will demand a different kind of focus,” a senior administration official said, speaking on the condition of anonymity. He insisted that Mr. Hagel was not fired, saying that the defense secretary initiated discussions about his future two weeks ago with the president, and that the two men mutually agreed it was time for him to leave. Continue reading the main story Write A Comment Now, however, the American military is in escalating crises. Some 3,000 American troops are being deployed in Iraq to help the Iraqi military fight the Sunni militants of the Islamic State, even as the administration struggles to come up with, and articulate, a strategy to defeat the group in both Iraq and Syria.

In the past few months he has been overshadowed by General Dempsey, who officials said had won the confidence of Mr. Obama with his recommendation of military action against the Islamic State.

Back in 1971, Gravel first tried to read the Papers from the Senate floor. He even got himself rigged up with a colostomy bag so he wouldn’t need to take breaks. But he was stymied by an unexpected procedural move. So he moved to Plan B: He called a late-night subcommittee meeting with almost no notice to the other members. Gravel read some of the Pentagon Papers out loud, but challenged by dyslexia and overcome with emotion, he finally opted for another way: “I asked for unanimous consent to put it in the record of the subcommittee. And there was no one there to object.” Here is amazing unedited footage of that night:

Under pressure from Congress, and in the wake of revelations that agency management influenced the IG’s final report, Obama appointed Linick as the State Department’s permanent IG in June 2013, less than a month after CBS broke the news about the IG cover-up. Congress confirmed him three months later. Linick launched a new investigation, and in October 2014 the IG confirmed that at least three DSS investigations were blocked by top State Department officials, including the probe involving the ambassador. While the new IG’s report was critical of management’s efforts to block the DSS investigations, it was silent on whether its own office bowed to the pressure.