Request Guidelines for Loud Music, Strobe Lights in Interrogations (OSD)

Jeffrey Kaye filed this request with the Department of Defense, Office of the Secretary of Defense of the United States of America.
Tracking # 14-F-0430
Status
Completed

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:

This is a FOIA request for all documents related to the use of loud music and strobe lights in detainee interrogations, subsequent to an April 1, 2005 recommendation (#13) in the Army Regulation 15-6 report, "Investigation into FBI Allegations of Detainee Abuse at Guantanamo Bay, Cuba Detention Facility" (also known as the "Schmidt" or "Schmidt-Furlow Report"), hereafter "15-6 Report." This request includes any guidelines written for or by authorities or other appropriate staff for use of loud music and strobe lights, and the "Futility" technique in general, for use at or by Joint Task Force GTMO.

According to a declassified version of the recommendations in 15-6 Report, part of a Joint Staff review, the report's recommendation was described as follows: "Recommend JTF-GTMO develop specific guidance on the length of time that a detainee may be subjected to futility music. Placement of a detainee in the interrogation booth and subjecting him to loud music and strobe lights should be limited and conducted within clearly prescribed limits." See URL (pg. 9 of PDF): http://www.dod.mil/pubs/foi/operation_and_plans/Detainee/death_investigation/ghost_detainees/Pages_721-750_from_Joint_Staff_Ghost_Detainee_part_32_of_45.pdf

The FOIA requests specifically all documents related to such time or other limits described in the use of loud music and strobe lights, and also, if possible, a description of what is meant by "interrogation booth."

Moreover, the 15-6 Report recommendation tasked SOUTHCOM as OPR (Office of Primary Responsibility). USD, or the Under Secretary of Defense (likely the Under Secretary of Defense for Intelligence) was tasked as the OCR, or Office of Coordinating or Collateral Responsibility. As a result, this FOIA is being sent to both SOUTHCOM and the Office of Secretary of Defense.

Specifically, in my request for documents, I refer to all reports, memoranda, emails, transcripts, research papers, faxes, presentations, or other electronic or handwritten material, and also any magnetic material, such as videotape or audio recordings, pertinent to this request. If any is considered non-releasable, I ask that what is not classified or declassified be segregated such that it can be released.

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.

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

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 Feb. 5, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: Department of Defense, Office of the Secretary of Defense

An acknowledgement letter, stating the request is being processed.

From: Jeffrey Kaye

Dear Ms. Hargis,

This is in reference to FOIA #14-F-0430 and Paul Jacobsmeyer's response to my initial FOIA request. His letter is dated March 10, 2014. In his letter he states that my request for a fee waiver is denied because "because the information stated does not support how the documents will significantly contribute to the public's increased understanding of the operations and activities of government." He further states that you are the person to contact as action officer.

My question is this: Mr. Jacobsmeyer's letter states that I can appeal to "the appellate authority, the Director of Administration and Management, Office of the Secretary of Defense, by writing directly to the Defense Freedom of Information Policy Office, Attn: Mr. James Hogan, 1155 Defense Pentagon, Washington, D.C. 20301-1155." -- Is this where I would appeal the denial of the fee waiver? I want to make sure before I send off an official appeal letter.

Thanks for your attention to this matter.

Jeffrey Kaye

From: Hargis, Yasmeen S CIV WHS ESD (US)

Good morning Mr. Kaye,

The address you quote below is the appellate authority and is how you would appeal denial of the fee waiver.

Thank you,
Yasmeen Hargis
Freedom of Information Analyst
Office of Freedom of Information
(571) 372-0420

From: Jeffrey Kaye

Director of Administration and Management
Office of the Secretary of Defense
Defense Freedom of Information Policy Office
Attn: Mr. James Hogan
1155 Defense Pentagon, Washington, D.C. 20301-1155.

March 19, 2014

Re: "Freedom of Information Act Appeal", Case No. 14-F-0430

Dear Mr. Hogan,

I am writing to appeal the decision to forego a fee waiver for my FOIA request, referenced above. On March 10, 2014 Paul Jacobsmeyer, Chief of the Department of Defense’s Office of Freedom of Information, wrote in reply to my FOIA request in regards for documents describing "the use of loud music and strobe lights in detainee interrogations”:

“While the requested information does concern the operations and activities of the government and does not appear to be intended for a commercial interest, it is not clear how the responsive documents - should they exist - would significantly contribute to the public understanding of the operations and activities of the government. After carefully reviewing your request I am denying your fee waiver request because the information stated does not support how the documents will significantly contribute to the public's increased understanding of the operations and activities of government. Please be aware that we reserve the right to grant a fee waiver should a search find documents that meet the criteria of a public interest fee waiver as described in the previous paragraph.”

While I appreciate that the FOIA office might reconsider the grant of a fee waiver, should the documents be found to “significantly contribute to the public's increased understanding of the operations and activities of government,” I believe for the following reasons the fee waiver should be granted presumptively.

1) Mr. Jacobsmeyer says “it is not clear” how my request, should documents exist, would “significantly contribute to the public's increased understanding of the operations and activities of government.” The regulations state that the release of information will “likely” so contribute, not that they “will” contribute. The question of whether or not the release of such documents, assuming they exist will “likely” contribute to the “increased understanding” criteria appears to rest upon a subjective consideration of what a significant contribution or understanding of government operations and activities consist.

2) In a March 16, 2010 memorandum on the Freedom of Information Act, written by President Obama’s Chief of Staff and Chief Counsel to Agency heads, noted, “on his first full day in office, the President directed you to administer the Freedom of Information Act (FOIA) with a ‘presumption in favor of disclosure’ and to respond to FOIA requests ‘promptly and in a spirit of cooperation.’” (see URL: http://www.whitehouse.gov/sites/default/files/rss_viewer/foia_memo_3-16-10.pdf)

It is my contention that the “presumption in favor of disclosure” argues that the question of the significance or not of a particular FOIA request should lie on the side of the requester. Mr. Jacobsmeyer says it is “not clear” to him how my request could be significant; he does not say he is certain it would not be significant. Hence, the presumption should fall on the side of the requester. This is particularly the case as the other aspects of what FOIA regulations say constitute a valid request for fee waiver are indeed met, as Mr. Jacobsmeyer concedes in his March 10 letter.

3) To add to the question of the presumption of significance I argue, I wish to add substantive evidence of the public interest in the subject of my FOIA request. Such public interest is representative of the significance accorded by the public in the subject of my FOIA request. Any further information on this subject, I submit, would constitute a “significant contribution or understanding of government operations and activities” under consideration.

Examples of such interest include the inclusion of the issue of “loud music and strobe lights” in U.S. military investigations of possible detainee abuse made after the Abu Ghraib scandal. For instance, the subject was discussed in the In the executive summary of the 2005 Department of Defense's Schimdt-Furlow investigation into alleged abuse of Guantanamo prisoners. See URL: http://www.defense.gov/news/jul2005/d20050714report.pdf

The topic has been the subject of popular culture representations. The 2009 movie “The Man Who Stare at Goats” had a scene that represented alleged use of loud music and strobe lights.

The topic has also been the subject of a number of press controversies. Most recently, the music group Skinny Puppy got a lot of press coverage for its invoice sent to the government for the alleged use of its music in interrogations on detainees, as covered, for instance, in Feb. 2014 by Time Magazine (see URL: http://time.com/4569/industrial-band-claims-u-s-government-used-their-music-to-torture-gitmo-prisoners/

Also, in 2009, the National Security Archive the National Security Archive filed 12 FOIA requests for government documents “concerning the use of loud music during detention and/or a technique to interrogate detainees at U.S.-operated prison facilities used in its War on Terror at Guantanamo, Iraq and Afghanistan during 2002-the present.” The webpage announcing their FOIA on this listed ten major newspapers that had articles on this, including the Washington Post, the UK Telegraph, Associated Press, the Wall Street Journal, and CNN, among others. Rather than list every single URL for these stories, I refer you to the NS Archive’s webpage reporting on it: http://nsarchive.wordpress.com/2009/10/22/musicians-protest-use-of-their-songs-as-torture/

4) Finally, I note that I wrote to the press office of the Department of Defense on February 3, 2014. I asked: “To my knowledge, the use of loud music and strobe lights was never disallowed by any published directive or executive order. I am asking if 1) such use of loud music and strobe lights is still currently allowed by DoD; and 2) when was the last time such a technique was used, and where? 3) Can you verify the technique itself comes under the Futility approach? If not, then what Army Field Manual approach is it subsumed under?”

On February 6, Lt. Col. Todd Breasseale answered my query: “Those interrogation techniques or approaches that are not authorized by and listed in Army Field Manual 2-22.3 are prohibited by the Detainee Treatment Act of 2005 and Executive Order 13491. The futility approach in Army Field Manual 2-22.3 does not authorize the use of loud music or strobe lights.”

Upon further query about specifics, Lt. Col. Breasseale wrote in a separate email on Feb. 6, “You'll need to FOIA for last use prior to the [Detainee Treatment] Act and the EO [13491], I'm afraid. I just don't have the information.”

Hence, when even the government’s own spokesperson cannot answer some questions about the use of loud music and strobe lights, it stands to reason that the information I seek via FOIA would “significantly contribute to the public's increased understanding of the operations and activities of government.”

In summary, I ask that the original decision declining a fee waiver be rescinded, and that a fee waiver for the press in this instance by presumptively granted. Should such a waiver not be granted, I ask that I be informed in advance of any charges made. I will note, regarding my own interest in gaining these documents to further my understanding of government operations in this instance, I will pay up to $200 in charges should a fee waiver be declined even after appeal and subsequent judgments made regarding the “significance” criterion on any documents.

Sincerely,

Jeffrey Kaye

From: Department of Defense, Office of the Secretary of Defense

A letter stating that the request appeal has been received and is being processed.

From: Department of Defense, Office of the Secretary of Defense

A letter stating that the request appeal has been rejected.

From: Jeffrey Kaye

You may wish to read the letter rejecting my appeal on a fee waiver, as it specifically denigrates Muckrock.com as not being a sufficient news media source to qualify for dissemination of FOIA material!

I plan to further protest or appeal this, but MuckRock may wish to do something on their own, as it is seems to be an attack on your service and your institution.

Thanks, Jeff

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 Feb. 5, 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-A-0430.

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 Feb. 5, 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-A-0430.

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 Feb. 5, 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-A-0430.

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 Feb. 5, 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-A-0430.

Thank you for your help.

From: Hargis, Yasmeen S CIV WHS ESD (US)

Good morning Mr. Kaye,

The current action officer for your request is Mr. Reynaldo Williams, reynaldo.i.williams.civ@mail.mil or 571-372-0439.

Thank you,
Yasmeen Hargis
FOIA Analyst
Office of Freedom of Information
OSD/JS FOIA Requester Service Center
P: (571) 372-0420
F: (571) 372-0480

From: Williams, Reynaldo I CIV (US)

Mr. Jeffrey Kaye
MuckRock News
DEPT MR 10404
PO Box 55819
Boston, MA 02205-5819

Dear Mr. Kaye:

Please be aware that our office processes all incoming FOIA requests on a first-in, first-out, basis. This means that your request was placed in a queue once it was received in our office. It also means it will be placed in a queue by the office that is tasked to search for responsive records. We already have initiated just such a search for responsive records, but the timing of the results to be provided to our office will depend on the place in the queue that your request was assigned.

If responsive documents are located, it may contain equities of another office(s) or agency(s). These office(s) or agency(s) would also be required to conduct their own review.

It is conceivable that all processing could be completed and the results provided to you at an early date, but it is also possible that more time will be required. In any case, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, we will send a formal letter to you.

We appreciate your patience and understanding in this matter.

If you are not satisfied with this action, you may petition the Appellate Authority, the Director of Administration, Office of the Secretary of Defense, by writing directly to the OSD/Joint Staff Freedom of Information, ATTN: Appeals Office, 1155 Defense Pentagon, Washington, D.C. 20301-1155; you may also submit your appeal electronically at the following link: http://pal.whs.mil/palMain.aspx. Your appeal should be postmarked within 60 calendar days of the date of this mail, should cite case number 14-F-0430, and should be clearly marked "Freedom of Information Act Appeal."

Sincerely,

Reynaldo I. L. Williams, Government Information Specialist
For Suzanne Council on behalf of
M.L. Wahling, Acting Chief, Office of Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Requester Service Center
1155 Defense Pentagon
Washington, D.C. 20301-1155
(571) 372-0439

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 Feb. 5, 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-A-0430.

Thank you for your help.

From: Williams, Reynaldo I CIV (US)

Mr. Jeffrey Kaye
MuckRock News
DEPT MR 10404
PO Box 55819
Boston, MA 02205-5819

Dear Mr. Kaye:

There is no change to my response of March 12, 2015.

Sincerely,

Reynaldo I. L. Williams, Government Information Specialist
For Suzanne Council on behalf of
M.L. Wahling, Acting Chief, Office of Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Requester Service Center
1155 Defense Pentagon
Washington, D.C. 20301-1155
(571) 372-0439

From: Williams, Reynaldo I CIV (US)

Mr. Jeffrey Kaye
MuckRock News
DEPT MR 10404
PO Box 55819
Boston, MA 02205-5819

Dear Mr. Kaye:

There is no change to my response of March 12, 2015.

Sincerely,

Reynaldo I. L. Williams, Government Information Specialist
For Suzanne Council on behalf of
M.L. Wahling, Acting Chief, Office of Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Requester Service Center
1155 Defense Pentagon
Washington, D.C. 20301-1155
(571) 372-0439

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 Feb. 5, 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-A-0430.

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 Feb. 5, 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-A-0430.

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 Feb. 5, 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-A-0430.

Thank you for your help.

From: Department of Defense, Office of the Secretary of Defense

A copy of documents responsive to the request.

From: Department of Defense, Office of the Secretary of Defense

A cover letter granting the request and outlining any exempted materials, if any.

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