One Powerful Law Helps Us Learn the Military’s Secrets
In praise of the Freedom of Information Act
by JOSEPH TREVITHICK
In the United States, the Freedom of Information Act—commonly referred to by the acronym FOIA—is a powerful tool for journalists and private citizens. And 2014 was an especially big year for those who make use of the law—including us here at War Is Boring.
Signed by Pres. Lyndon Johnson in 1966, the legislation allows organizations and individuals to ask the federal government to release classified or otherwise hidden documents and information.
Since then, Congress has modified and expanded the act several times.
In 2014, we used the law to discover new details about the top-secret RQ-170 drone, plans for war in Syria and much more. Without the FOIA process, the documents would likely have remained hidden away.
Unfortunately, the biggest FOIA-related news of the year was the quiet death of the FOIA Improvement Act. This law would have given journalists and others easier access to government information.
Despite support from Democrats and Republics alike, the House of Representatives declined to call for a vote on the act.
“I am deeply disappointed that … the House failed to pass the FOIA Improvement Act,” Sen. Patrick Leahy of Vermont, the legislation’s main sponsor, said in a statement on Dec. 12.
The proposed law “would codify … a ‘Presumption of Openness’ when considering the release of government information under FOIA,” Leahy added.
Passed in the Senate by unanimous consent, the legislation would have helped streamline the process, and make it easier for everyone to get information that doesn’t threaten national security. The bill also put clear limits on one of FOIA’s nine exemptions, which allow government officials to withhold information for various reasons.
This so-called “deliberative process” exemption—often just called B5 after its location within the FOIA text—allows agencies to refuse to release documents related to ongoing decision making or ones protected by attorney-client privileges.
The formal text of the exemption is admittedly “somewhat opaque,” according to the Department of Justice.
As a result, B5 is one of the most widely abused exemptions. Government offices routinely use the exemption to hold back information. A document might be specifically for use within a particular office, intended for another government entity or technically in an unfinished or “draft” state.
In one egregious example, the Federal Election Commission cited B5 when they blocked the release of materials describing when officials could actually use the exemption, according to Shawn Musgrave of Muckrock, an organization that crowd-sources FOIA requests.
After appealing the decision, Musgrave discovered the FEC already published these rules on its own Website.
“This incredibly large cutout is often called the ‘withhold it because you want to’ exemption,” wrote FOIA coordinator Nate Jones of George Washington University’s National Security Archive.
And these are exactly the considerations War Is Boring has to take into account in its own FOIA requests. We are currently appealing a B5-related decision ourselves.
Problems with B5 and other stonewalling tactics led to a surge in lawsuits against the federal government over the release of information. In 2014, individuals and organizations filed more than 400 FOIA-related suits, according to a report by the FOIA Project.
While we do have appeals in progress, we are not engaged in any legal action. Legislators hoped to fix some of these issues with the proposed act.
This doesn’t mean the process doesn’t work at all. Between January and December, we submitted more than 150 requests and received more than 1,000 pages of documents in return.
We sent various requests to entities within the U.S. Army, Navy, Air Force and Marine Corps, as well as the Special Operations Command and the Pentagon.
We received information on paper and CDs—and via email—from dozens of different offices. Thankfully, no one is sending anything out on microfilm anymore.
We mailed—or delivered electronically—other FOIA requests to the State Department, the Director of National Intelligence, the Federal Bureau of Investigation, the Drug Enforcement Agency and U.S. Customs and Border Protection.
The law helped us get a host of previously undisclosed details about the Air Force’s top-secret RQ-170 drone. The stealthy sentinels posed on Guam, helped test a huge bomb and might have surrounded Iran four years ago.
The flying branch also released histories showing how much the Pentagon spies on China, Russia and its own friends and allies. The Air Force even has a spy ship snooping around the Persian Gulf.
We found out that the Air Force’s drone force was dangerously demoralized a decade ago, and that certain units helped kill more than 1,000 terrorists. When F-22 stealth jets tried to kill their pilots, the flying branch called in a shrink to work on “allaying pilot concerns.”
Thanks to FOIA requests our readers discovered that the Pentagon planned to attack Syria much earlier than previously known. More than 60 Pentagon declassified reports after Typhoon Yolanda struck the Philippines in 2013 offered clues about secretive commandos in the country.
And we peeked into the past. War Is Boring found official reports about a tiny ground attack plane Congress thought could replace the A-10 Warthog. The government also disclosed a plan to blow up bridges in Vietnam with a massive floating bomb.
In the 1970s, the Army published a manual on how to “Guard Against Rape”—which we discovered via a FOIA request. Advocates for victims of sexual assault complained that some things still haven’t changed.
Of course, not every request translated into new information. U.S. Strategic Command would not “confirm nor deny” how many lettered or numbered missile defense sites—like Site K in Turkey or Site 512 in Israel—it controls around the world.
We also know the Air Force doesn’t keep records for top secret RB-69A spy planes flown during the 1960s. The aircraft “were assigned the designation and serials as a matter of convenience, but were actually assigned and operated by other agencies”—most likely the Central Intelligence Agency — according to the official response.
Yemeni authorities directly interceded to deny another FOIA inquiry.
However, we did get a copy of the written request from Maj. Gen. Saleh Mohammed Hassan Salem, the small nation’s assistant minister of defense for logistics support.
While the proposed FOIA improvements wouldn’t have necessarily helped in these instances, we still hope Congress will follow through with the planned reforms soon. A well-oiled process helps both journalists and regular people hold government accountable.
