Request for CIA OTS documents related to EIT program legal approval

Jeffrey Kaye filed this request with the Central Intelligence Agency of the United States of America.
Tracking # F-2014-00351
Due Jan. 14, 2014
Est. Completion March 17, 2017
Status
Awaiting Response

Communications

From: Jeffrey Kaye

To Whom It May Concern:

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

I seek all files and documents related to submissions made by the Office of Technical Services (within CIA) to first, the Department of Justice Office of Legal Counsel or its representatives, and second, to the Department of Defense Office of General Counsel, in the period September 11, 2001 to May 30, 2005.

In making this request, I reference the CIA's May 7, 2004 Inspector General report on Counterterrorism Detention and Interrogation Activities, which stated, "CTC [CIA's Counter-Terrorism Center], with the assistance of the Office of Technical Service (OTS), proposed certain more coercive physical techniques to use on Abu Zubaydah.... CIA's OTS obtained data on the use of the proposed EITs and their potential long-term psychological effects on detainees. OTS input was based in part on information solicited from a number of psychologists and knowledgeable academics in the area of psychopathology.... OTS also solicited input from DoD/Joint Personnel Recovery Agency (JPRA) regarding techniques used in its SERE training and any subsequent psychological effects on students. DoD/JPRA concluded no long-term psychological effects resulted from use of the EITs, including the most taxing technique, the waterboard, on SERE students. The OTS analysis was used by OGC [DoD's Office of General Counsel] in evaluating the legality of techniques." [See URL: http://www2.gwu.edu/~nsarchiv/torture_archive/20040507.pdf]

Furthermore, I also reference the April 22, 2009 Senate Intelligence Committee narrative of the Office of Legal Counsel's opinions on the CIA's interrogation program (see URL: http://www.intelligence.senate.gov/pdfs/olcopinion.pdf). This document states: "The CIA’s Office of General Counsel subsequently asked OLC [Office of Legal Counsel] to prepare an opinion about the legality of its proposed techniques. To enable OLC to review the legality of the techniques, the CIA provided OLC with written and oral descriptions of the proposed techniques. The CIA also provided OLC with information about any medical and psychological effects of DoD’s Survival, Evasion, Resistance and Escape (SERE) School, which is a military training program during which military personnel receive counter-interrogation training."

Given the two referenced documents above, the existence of such advice from CIA, and specifically OTS, to both OLC and OGC/DoD in the creation and drafting of interrogation protocols is a given. I request all emails, memoranda, reports, enclosures, laboratory records, research protocols, statements of informed consent, videos, audio tapes, and all other forms of communicated advice between CIA's OTS and OLC and OGC on the question of interrogation techniques and detention policies during the period in question.

If not all of the material can be released, I ask that all segregable portions be made available.

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. Numerous books and articles, even whole websites, have been dedicated to understanding and/or reporting on the U.S. government's interrogation and detention policies after 9/11.

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.

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, although I note I approve in advance any charges up to $100. 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

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: Central Intelligence Agency

A letter stating the request for reduced or waived fees has been rejected.

From: Jeffrey Kaye

Michele Meeks
Information and Privacy Coordinator
Central Intelligence Agency

Re: Reference #F-2014-00351

Dear Ms. Meeks,

This letter constitutes both a request for an appeal on the issue of a denial of fee waiver, and a statement of what fees I would pay should such an appeal not succeed.

On 15 January 2014 you replied to my FOIA request for all emails, memoranda, reports, etc. regarding interrogation techniques and detention policies sent to and from the CIA’s Office of Technical Services and the Department of Justice Office of Legal Counsel between September 11, 2001 and May 30, 2005. In your reply, you stated that according to Part 1900 of Title 32 of the Code of Federal Regulations, and Department of Justice guidance in your judgment my request did not meet standards for a fee waiver. The reason stated was that the information requested "is not 'likely to contribute significantly to public understanding of the operations or activities of the United States Government.’"

You furthermore stated that prior to processing my request, you had to receive a commitment to pay all fees incurred for the search and reproduction of responsive records (beyond what is supplied free of charge).

Statement of Commitment to Pay Fees

I hereby notify you that, should my appeal of the fee waiver denial fail (see below for appeal), I am willing to pay up to $200.00 for the relevant search and reproduction charges. I was told by telephone by the CIA’s FOIA office that my FOIA was unlikely to cost more than $100. Should any fees go beyond the $200.00, please notify me by telephone or email via MuckRock.com.

Appeal of Denial of Fee Waiver

Not withstanding the promise to pay noted above, I protest the denial of the fee waiver on my FOIA (reference no. F-2014-00351) and appeal that decision.

According to Part 1900 of Title 32 of the Code of Federal Regulations, and in particular the portion you quoted (32 CFR 1900.13 - FEES FOR RECORD SERVICES), there are particular factors to take into consideration in making a determination regarding the fee waiver. In each case, I believe the answers can be answered in the affirmative.

1) Whether the subject of the request concerns the operations or activities of the United States Government – Yes, manifestly so.

2) Whether the disclosure of the requested documents is likely to contribute to an understanding of United States Government operations or activities – Yes, in that the documents will show how one part of the government interacts with another part of the government in assessing matters of safety and policy, then yes, it contributes to that understanding. As documented below, we can see that OTS itself has been of public interest as regards both its operations and activities.

3) Whether the disclosure of the requested documents will contribute to public understanding of United States Government operations or activities – Yes, for the same reason as 2) above.

While you state the requested material will “is not likely” to contribute to the understanding of the governmental operations or activities noted above, it is prima facie precisely true that it will. My FOIA request itself follows upon another FOIA request that brought about the partial declassification of the CIA Inspector General report on “Counterterrorism Detention and Interrogation Activities” (IG Report) itself. The 2009 release of the IG Report was widely covered by the U.S. and the world press.

The following examples demonstrate the great interest in the governmental operations and activities covered in the report, which my FOIA request seeks to examine in greater detail:

"CIA official: No proof harsh techniques stopped terror attacks"
McClatchy Newspapers (4/24/2009)
http://www.mcclatchydc.com/2009/04/24/66895/cia-official-no-proof-harsh-techniques.html#storylink=cpy

"Torture Memos Used 'Overstated' 'Exaggerated' Information From CIA"
Huffington Post (September 24, 2009)
http://www.huffingtonpost.com/2009/08/24/torture-memos-used-overst_n_267607.html

Note: The two articles above also show the interest by the press and public in the interactions between the OLC and the CIA’s OTC as reported in the IG Report.

"Report Reveals CIA Conducted Mock Executions"
Newsweek (updated pub. date 3/13/2010)
http://www.newsweek.com/report-reveals-cia-conducted-mock-executions-78639

"Five Important Revelations From The CIA Inspector General Report"
Time (Swampland blog) (8/24/2009)
http://swampland.time.com/2009/08/24/five-important-revelations-from-the-cia-inspector-general-report/

"Ex-CIA Inspector General on Interrogation Report: 'The Agency Went over Bounds and Outside the Rules'"
Spiegel English (8/31/2009)
http://www.spiegel.de/international/world/ex-cia-inspector-general-on-interrogation-report-the-agency-went-over-bounds-and-outside-the-rules-a-646010.html

There are many more such articles, as well as blog posts, far too many to be listed here.

Furthermore, the CIA felt the public’s interest in or knowledge to be gained by an understanding of the activities of its Office of Technical Services was demonstrated by a 16 September 2011 CIA press release, “CIA's Office of Technical Service Celebrates 60 Years of Innovation.” (URL: https://www.cia.gov/news-information/press-releases-statements/press-release-2011/ots-celebrates-60-yrs.html).

The CIA press release on OTS noted a number of different activities CIA felt should be available for public education:

“…. an OTS electronics expert provided critical testimony in the Pan Am Flight 103 bombing trial, having matched a circuit board fragment that survived the explosion with a timing device from a Libyan terrorist attack the CIA had thwarted years earlier. In 1997, OTS specialists were involved in preparing and placing equipment that helped locate Mir Aimal Kansi—who had killed and wounded several CIA employees outside the Agency’s Headquarters in 1993. In 2009, an OTS officer in the field analyzed insurgent electronic devices, revealing critical information about an imminent attack planned against a US military convoy.”

In 2009, former OTS director Robert Wallace published a book, Spycraft, which looked in some detail at the actions and activities of OTS under his directorship. I believe such a book was published in an effort to meet the public’s interest in or knowledge to be gained by an understanding of the activities of OTS. Indeed, a number of press interviews and reviews of the book showed that to be the case.

For example:

"Real-Life Get Smart: Q&A With the CIA’s Former Gadget Guru"
Popular Mechanics (October 1, 2009)
http://www.popularmechanics.com/technology/military/4267549

"CIA swiped gadget ideas from James Bond, researcher says"
Fox News (July 19, 2013)
http://www.foxnews.com/tech/2013/07/19/cia-swiped-gadget-ideas-from-james-bond-researcher-says/

Note the latter article I reference here, out of many published, shows public interest in OTS activities extending years after the initial date of the publication of Wallace’s book, and within the last six months.

Finally, it does not need documentation to say that public interest and controversy surrounding the particulars that went into the construction and development of the CIA’s high-value detainee interrogation program, 2001-2008, is a matter of much interest today, given the large number of article surrounding the question of whether the Senate Select Committee on Intelligence should or should not release its report on that subject. Indeed, the CIA has participated in that debate itself.

This appeal only concerns whether or not a denial of a fee waiver for this applicant in relation to this particular FOIA request is appropriate or not. In summary, I feel I have demonstrated the untenability of the contention that this FOIA request "is not 'likely to contribute significantly to public understanding of the operations or activities of the United States Government.’"

I ask that a fee waiver be granted for FOIA request #F-2014-00351, and appeal the denial of such fee waiver in earlier correspondence.

Sincerely,
Jeffrey S. Kaye

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: Jeffrey Kaye

To Whom It May Concern:

I want to follow up on two items related to my Freedom of Information request, assigned reference number F-2014-00351. I originally submitted this FOIA request Nov. 30, 2013, seeking "all files and documents related to submissions made by the Office of Technical Services (within CIA) to first, the Department of Justice Office of Legal Counsel or its representatives, and second, to the Department of Defense Office of General Counsel, in the period September 11, 2001 to May 30, 2005."

1) On Jan. 15, 2014, Ms. Michele Meeks wrote to inform me that my FOIA request did not meet the standards for a fee waiver. I wish to know the status of my appeal of the denial of a fee waiver, which I submitted on February 3, 2014.

2) Furthermore, I wish to have a written date of complete action on my FOIA request. 5 U.S.C. § 552(a)(7) states, in pertinent part:

"Each agency shall . . . provide[ ] information about the status of a request to the person making the request . . . , including . . . an estimated date on which the agency will complete action on the request."

Pursuant to this statute, I hereby formally request that the CIA provide me with a written estimated date on which the agency will complete action on this FOIA request. A mere statement of the request’s place in your queue will not satisfy this status request. Similarly, a statement that the agency has a significant backlog of requests and cannot provide an estimated date of completion will not satisfy this status request. Only “an estimated date on which the agency will complete action on the request” will satisfy this status request and the agency’s statutory responsibility.

Thank you for your assistance.

Jeffrey Kaye

From: Central Intelligence Agency

An acknowledgement letter, stating the request is being processed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: Central Intelligence Agency

An interim response, stating the request is being processed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: Central Intelligence Agency

An interim response, stating the request is being processed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

Thank you for your help.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on Nov. 30, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #F-2014-00351.

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

From: Central Intelligence Agency

An interim response, stating the request is being processed.

From: Jeffrey Kaye

Re Reference: F-2014-00351

Dear CIA FOIA Office,

On May 3, 2016, your office explained that my FOIA for all all materials emails, memoranda, reports, enclosures, laboratory records, research protocols, statements of informed consent, videos, audio tapes, and all other forms of communicated advice between Office of Technical Services and the Department of Justice Office of Legal Counsel and the Department of Defense Office of General Counsel on the question of interrogation techniques and detention policies between September 11, 2001 and May 30, 2005, had been been given an estimated completion date of March 17, 2017. This date is nearly three months passed, and I've heard nothing regarding the completion of this FOIA.

The interest in the creation and implementation of the "enhanced interrogation" and Rendition to Interrogation program of the CIA continues unabated in the press, and the public's interest in the kinds of material I've requested is therefore demonstratively high. I respectfully ask when this FOIA request, originally made in November 2013, will be completed.

Sincerely,
Jeffrey Kaye

From: Central Intelligence Agency

An interim response, stating the request is being processed.

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