Request all Office of Secretary of Defense review materials re Appendix M

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

This FOIA request is for all materials involved in the review of "activities" surrounding the use of Army Field Manual 2-22.3's (AFM) restricted "Separation" technique, as described in the AFM's Appendix M.

On page M-3 of the AFM, it states, "M-8. The employment of separation requires notification, acknowledgment, and periodic review, in accordance with USD(I) Memorandum, "(S//NF) Guidance for the Conduct and Oversight of Defense Human Intelligence (HUMINT) (U)," dated 14 December 2004. This means that after the separation is approved for use by COCOMs [Combatant Commands], the I&WS [Deputy Under Secretary of Defense for Intelligence and
Warfighting Support] must be notified as soon as practical. The Office of the Secretary of Defense will review these activities periodically in accordance with DOD Directive 3115.09."

Hence, this FOIA asks specifically for all materials involved in the review process as described in the paragraph above, including, but not limited to, reports, directives, memoranda, emails, letters, presentations, videos, audio tapes, or other formal or informal communications and memorializations of said review or reviews.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage. I believe this request constitutes information that is of significant interest to the American public, as the use of interrogation techniques, including use of the restricted Separation technique, has been the subject of numerous newspaper and academic articles for some years now. If some portions of this request cannot be released for legitimate classification reasons, I request that all segregable portions of such materials that are not withheld be released.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Jeffrey Kaye

Michael Bowers, FOIA Analyst
Michael.D.Bowers.CIV@Mail.Mil
For Suzanne Council, Senior Advisor on behalf Paul J. Jacobsmeyer, Chief
Office Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Request Service Center
1155 Defense Pentagon
Washington, DC 20301-1155

March 12, 2014

Re: Reference No. 14-F-0444

Dear Mr. Bowers,

I received your answer to my FOIA request of February 9, 2014, which your office originally assigned reference number 14-F-0444. In your February 20, 2013 letter, you stated that the U.S. Army had “cognizance” over the records I was seeking, and you forwarded my request to them. I thank you for that. However, I do not believe that action completes my FOIA request in regards to your office, and ask that your office reopen my case.

I asked in my original request for “all materials involved in the review of 'activities' surrounding the use of Army Field Manual 2-22.3's (AFM) restricted 'Separation' technique, as described in the AFM's Appendix M.” I furthermore noted that the AFM itself identified the Office of the Secretary of Defense has responsible for review activities regarding use of “Separation.”

Here is the relevant text from page M-8 of the AFM (emphasized material is between added asterisks): “The employment of separation requires notification, acknowledgment, and periodic review, in accordance with USD(I) Memorandum, "(S//NF) Guidance for the Conduct and Oversight of Defense Human Intelligence (HUMINT) (U)," dated 14 December 2004. This means that after the separation is approved for use by COCOMs [Combatant Commands], the I&WS [Deputy Under Secretary of Defense for Intelligence and Warfighting Support] must be notified as soon as practical. ***The Office of the Secretary of Defense will review these activities periodically in accordance with DOD Directive 3115.09.***"

While I appreciate that the bulk or some substantive portion of the materials I requested may reside with the U.S. Army, the Office of the Secretary of Defense either has documents or other materials pertaining to the review of Appendix M activities, or it does not. According to DOD Directive 3115.09, there must be such review materials, and they are properly the focus of my FOIA request. If such review never took place, i.e., that the Office of the Secretary of Defense (OSD) has no responsive documents, that fact should be a conclusion drawn from a requested search.

In my original request, I was quite specific that I was interested in OSD’s reviews of Appendix M, when I stated I sought “reports, directives, memoranda, emails, letters, presentations, videos, audio tapes, or other formal or informal communications and memorializations of said review or reviews.” I asked for this because it was clear that OSD had legal and/or command responsibilities via DOD directive to make the requisite reviews.

Your closure of this case was done without the requested search. I ask the case be reopened, the search for materials undertaken, and a full response in relation to my FOIA request be communicated.

If you disagree with this request to reopen FOIA reference number 14-F-0444, I ask for an explanation of why such a search as I request cannot be done, and the proper avenues for an appeal, should one be necessary.

Thank you very much.

Respectfully,
Jeffrey Kaye

May 4, 2010

Don Nichelson
Office of Freedom of Information
Department of Defense
1155 Defense Pentagon
Washington, DC 20301-1155
Donald.nichelson.civ@mail.mil
FAX: (571) 372-0500

Re: FOIA #14-F-0444

Dear Mr. Nichelson,

Thanks for talking to me a few weeks ago. I understand that you want me to more specifically focus the request I am making under FOIA # 14-F-0444. In your April 10, 2014 letter to me you ask, “to facilitate a faster response, if you could to narrow your request in any way to specific records you may be looking for, or directives, it would assist in the processing of your request, and would be beneficial in providing you a faster response.”

I spoke to you on the phone last month, and I did promise to more specifically focus my request. In my February 9, 2014 FOIA initial request, I wrote:

“On page M-3 of the AFM, it states, ‘M-8. The employment of separation requires notification, acknowledgment, and periodic review, in accordance with USD(I) Memorandum, "(S//NF) Guidance for the Conduct and Oversight of Defense Human Intelligence (HUMINT) (U),” dated 14 December 2004. This means that after the separation is approved for use by COCOMs [Combatant Commands], the I&WS [Deputy Under Secretary of Defense for Intelligence and Warfighting Support] must be notified as soon as practical. The Office of the Secretary of Defense will review these activities periodically in accordance with DOD Directive 3115.09.’

“Hence, this FOIA asks specifically for all materials involved in the review process as described in the paragraph above, including, but not limited to, reports, directives, memoranda, emails, letters, presentations, videos, audio tapes, or other formal or informal communications and memorializations of said review or reviews.”

Per our conversation, my FOIA would be satisfied if focus were made of all memoranda, reports, official directives, emails, presentations, or informal communications and memorializations of the review process for Appendix M as it pertains to these any of the above materials coming to or from the Office of the Secretary of Defense to the Combatant Commands (COCOMs) at SOUTHCOM and CENTCOM. as well as the U.S. Army Intelligence Center at Ft. Huachuca.

By “Office of Secretary of Defense”, I mean to include the office and/or person of the Deputy Under Secretary of Defense for Intelligence and Warfighting Support, in addition to the Under Secretary for Intelligence (USD(I)).

Search terms for the above should include “Appendix M,” “Field Manual 2-22.3,” “Separation,” “Annex M,” “periodic review,” “interrogation review,” interrogation oversight,” “Oversight of Defense Human Intelligence,” and “HUMINT Oversight.” This is not meant to be an exhaustive list, but to provide some sense of where the search for documents should begin.

I wish to note again that both an issued Field Manual – a Field Manual that carries the authority of Executive Order 13491 – and DoD Directive 3115.09, mandates the “periodic review” of the “Separation” approach. This “periodic review” is supposed to take place under the auspices of the Secretary of Defense. There is no way there are zero documents pertaining to this that are not discoverable by FOIA request – unless such review has never taken place.

Thanks for your attention to this matter.

Sincerely,

Jeffrey Kaye, Ph.D.
844 California Street
San Francisco, CA 94108
415-362-8262 work
415-260-4222 cell

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thank you for your help.

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Feb. 9, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-F-0444.

Thanks for your help, and let me know if further clarification is needed.

The following was sent by snail mail on May 11, 2016:

Director for Oversight and Compliance
Office of the Secretary of Defense
9010 Defense Pentagon
Washington, DC 20301-9010.

Re Freedom of Information Act Appeal, Case number 14-F-0444

Dear Sir or Madam:

I am writing to appeal a decision by Mr. H.M. Higgins, Director for Defense Intelligence, Intelligence Security, in his capacity as Initial Denial Authority, who wrote in a letter to me dated March 17, 2016 that information I requested should be withheld pursuant to Exemption 1 of the OIA, 5 U.S.C. 552 regarding protection of classified national security information. There are approximately 67 pages that have been withheld in their entirety.

It is my understanding that this Exemption 1 denial is considered currently and properly classified in accordance with Executive Order 13526 Section 1.4(a), military plans and operations, and Section 1.4(c), intelligence. According to this executive order, “Information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of this order…”

Section 1.2 of the Executive Order describes three levels of damage which correspond to levels of possible damage to national security: Top Secret (“exceptionally grave damage to the national security that the original classification authority is able to identify or describe”); Secret (“serious damage to the national security that the original classification authority is able to identify or describe”); and Confidential (“unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe”). If such documents are to be withheld, as proposed by Mr. Higgins, then the denying authority should describe what level of classification such documents hold, and the accompanying level of damage to national security. If this cannot be described, than the material should not be withheld.

Mr. Higgins furthermore wrote, “The information is currently and properly classified in accordance with Executive Order 13526 Section military plans and operations, and Section intelligence. Additional information is Withheld pursuant to Exemption 6 of the OIA, 5 U.S.C. 552 which pertains to the personal privacy of individuals.”

Three documents were released to me in entirety, but these documents, while appreciated, were not particularly germane to my original FOIA request. That request, dated February 9, 2014 to the Office of the Secretary of Defense FOIA office, asked “for all materials involved in the review of ‘activities’ surrounding the use of Army Field Manual 2-22.3's (AFM) restricted "Separation" technique, as described in the AFM's Appendix M.”

The basis of my request, as I noted in my original letter, can be found on page M-3 of the AFM, where it states (bold emphasis added here), "M-8. The employment of separation requires notification, acknowledgment, and periodic review, in accordance with USD(I) Memorandum, ‘(S//NF) Guidance for the Conduct and Oversight of Defense Human Intelligence (HUMINT) (U),’ dated 14 December 2004. This means that after the separation is approved for use by COCOMs [Combatant Commands], the I&WS [Deputy Under Secretary of Defense for Intelligence and
Warfighting Support] must be notified as soon as practical. The Office of the Secretary of Defense will review these activities periodically in accordance with DOD Directive 3115.09."

I believe the information withheld by Mr. Higgins – some 67 pages in all – pertains to the review materials I had requested. I ask by way of this appeal that those pages be released, and the original response from OSD be deemed non-responsive, in part. The denial authority did not describe in what way these withheld materials would harm or violate classification of national security information. Indeed, I, and the public who might follow these proceedings, do not even know what the withheld materials are. This is germane as one reason for the FOIA request was to see if in fact “activities” surrounding use of Appendix M’s “Separation” technique have or are indeed being reviewed “periodically in accordance with” the appropriate DoD directive.

The fact of such review, and the basis upon which it is conducted is already a public document, as it appears in the text of the Army Field Manual itself. It seems to be a case of over-classification that literally not a word or sentence in 67 pages of material can be properly released regarding this OSD “review.” I ask for full release of the relevant documents, but those documents that cannot be released in full be released in segregated or redacted format, with all FOIA redactions noted by item and FOIA exemption. For instance, it is understood and even expected that exemptions related to personal identifying information would be withheld (Exemption 6 of the OIA, 5 U.S.C. 552).

If some documents cannot be released at all, I ask that a kind of Vaughn index be used to describe what kind of document is being withheld and a brief summary of its contents. This kind of index is usually used in lawsuits, but there is nothing to prevent something like such a description being made, if thereby it saves both the government and citizen applicant money in foregoing the necessity for a lawsuit over this material.

I further note that the Executive Order referenced by the Initial Denying Authority includes provisions for declassification of material. Section 1.5, Duration of Classification, states, “At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information. Upon reaching the date or event, the information shall be automatically declassified.” – I ask that the date for declassification of this material be released, if the material itself cannot. Such specification of dates should also include the date of original classification of any such classified document.

Please feel free to reach out to me with any further questions or issues.

Sincerely,

Jeffrey Kaye
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May 11, 2016