Awaiting Response

Past due by 11 months, 3 weeks.

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

Jeffrey Kaye is making this request to Department of Defense, Office of the Secretary of Defense of the United States of America.

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Jeffrey Kaye 02/09/2014

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

Office of the Secretary of Defense 02/20/2014

Jeffrey Kaye 03/12/2014

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

Department of Defense, Office of the Secretary of Defense 03/20/2014

Department of Defense, Office of the Secretary of Defense 04/10/2014

From: "Nichelson, Donald CIV WHS ESD (US)" <donald.nichelson.civ@mail.mil>
Date: April 10, 2014 at 3:40:47 AM PDT
To: "jeffkaye@sbcglobal.net" <jeffkaye@sbcglobal.net>
Subject: Interim Response 14-F-0444

Dear Jeffrey Kaye:

This is an interim response to your Freedom of Information Act (FOIA) request dated February 09, 2014, which was received in this office on February 10, 2014. Your request has been assigned case number 14-F-0444, and we ask that you use that number when referring to your request.

I have been informed by the action officer currently assigned to conduct the search for responsive records for your request that as written the request may require consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records you request.

Accordingly, 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. Currently our administrative workload is 1554 open requests.

If you would like to discuss how to limit your request in order to speed the processing time, you can contact OSD action officer assigned to your request, Mr. Don Nichelson at (571) 372-0425.

Thank you,

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

Nichelson, Donald CIV WHS ESD (US) 04/28/2014

Good afternoon Mr. Kaye,

Dear Jeffrey Kaye:

Per our conversation, you indicated you would provide an email to clarify your modification to your original request which would narrow the scope of your request, in years, and scope. I intend to forward your email to the action officers conducting the search for your request. Please forward a narrower scope, and I'll ensure it gets to the component who will use it to complete the search perimeters for your request.

Respectfully,

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

Jeffrey Kaye 05/04/2014

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

MuckRock.com 06/03/2014

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.

MuckRock.com 07/03/2014

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.

Nichelson, Donald CIV WHS ESD (US) 07/07/2014

Good morning sir.

This morning, I will forward on your inquiring to the OSD component conducting a records search regarding your request, and will provide you an updated status of your request.

Respectfully,

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

Nichelson, Donald CIV WHS ESD (US) 07/07/2014

Hello again sir.

As your response was due today, I asked for and received a 30 day extension request from the component as they indicate they have a voluminous amount of documents to review.
I will check on the status of the request in the next two weeks to obtain the progress.

Respectfully,

Don
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

MuckRock.com 08/06/2014

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.

Nichelson, Donald CIV WHS ESD (US) 08/06/2014

Good morning,

I will contact the OSD component action officer assigned to your case today to obtain a new estimated completion date for your request. I will contact you when a new date is received.


Respectfully,

Don

Don Nichelson, Sr.
Defense Freedom of Information Policy Office (DFOIPO)
FOIA Appeals Analyst
(571) 372-0425
(571) 372-0500 fax
NIPR: donald.nichelson.civ@mail.mil

Marye, Charles C CIV WHS ESD (US) 08/06/2014

Mr. Kaye,

We continue to process your request. It is our policy that each request receives prompt attention, and every effort is made to treat all requesters equally. As previously noted, and unfortunately, our backlog of open requests at the time your request was received was over 1,554. Once I receive a response, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, I will send you a formal response letter to your request. Please note all documents are reviewed before we respond. Further note the unusual circumstances concerning your cases are: (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. These 3 factors do have an impact on the processing of your case. The search for the records you have requested is still ongoing. Once that search has been completed, we will be able to provide an estimated completion date. I appreciate your patience and understanding in this matter.

Sincerely,

Charles Marye
OSD/JS Office of Freedom of Information
(571) 372-0407

NIPR: charles.c.marye.civ@mail.mil
SIPR: charles.c.marye.civ@mail.smil.mil

MuckRock.com 11/20/2014

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.

Marye, Charles C CIV WHS ESD (US) 11/20/2014

Mr. Kaye,

We continue to process your request. It is our policy that each request receives prompt attention, and every effort is made to treat all requesters equally. As previously noted, and unfortunately, our backlog of open requests at the time your request was received was over 1,554. Once I receive a response, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, I will send you a formal response letter to your request. Please note all documents are reviewed before we respond. Further note the unusual circumstances concerning your cases are: (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. These 3 factors do have an impact on the processing of your case. The search for the records you have requested has been completed, however the review of the documents is still ongoing. Once that review has been completed, we will be able to provide an estimated completion date. I appreciate your patience and understanding in this matter.

Sincerely,

Charles Marye
OSD/JS Office of Freedom of Information
(571) 372-0407

NIPR: charles.c.marye.civ@mail.mil
SIPR: charles.c.marye.civ@mail.smil.mil

MuckRock.com 01/06/2015

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.

Marye, Charles C CIV WHS ESD (US) 01/06/2015

Mr. Kaye,

We continue to process your request. It is our policy that each request receives prompt attention, and every effort is made to treat all requesters equally. As previously noted, and unfortunately, our backlog of open requests at the time your request was received was over 1,554. Once I receive a response, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, I will send you a formal response letter to your request. Please note all documents are reviewed before we respond. Further note the unusual circumstances concerning your cases are: (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. These 3 factors do have an impact on the processing of your case. The search for the records you have requested has been completed, however the review of the documents is still ongoing. Once that review has been completed, we will be able to provide an estimated completion date. I appreciate your patience and understanding in this matter.

Sincerely,

Charles Marye
OSD/JS Office of Freedom of Information
(571) 372-0407

NIPR: charles.c.marye.civ@mail.mil
SIPR: charles.c.marye.civ@mail.smil.mil

MuckRock.com 02/05/2015

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.

Marye, Charles C CIV WHS ESD (US) 02/05/2015

Mr. Kaye,

We continue to process your request. It is our policy that each request receives prompt attention, and every effort is made to treat all requesters equally. As previously noted, and unfortunately, our backlog of open requests at the time your request was received was over 1,554. Once I receive a response, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, I will send you a formal response letter to your request. Please note all documents are reviewed before we respond. Further note the unusual circumstances concerning your cases are: (a) the need to search for and collect records from a facility geographically separated from this Office; (b) the potential volume of records responsive to your request; and (c) the need for consultation with one or more other agencies or DoD components having a substantial interest in either the determination or the subject matter of the records. These 3 factors do have an impact on the processing of your case. The search for the records you have requested has been completed, however the review of the documents is still ongoing. Once that review has been completed, we will be able to provide an estimated completion date. I appreciate your patience and understanding in this matter.

Sincerely,

Charles Marye
OSD/JS Office of Freedom of Information
(571) 372-0407

NIPR: charles.c.marye.civ@mail.mil
SIPR: charles.c.marye.civ@mail.smil.mil