FOIA Case: Who are you calling a low-ranking government official?

Via WaPo v. SIGAR (Civil Action No. 18-2622 (ABJ)
On March 23, 2017, Craig Whitlock, a reporter from plaintiff Washington Post Company (the “Post”), submitted a Freedom of Information Act (“FOIA”) request to the Special Inspector General for Afghanistan Reconstruction (“SIGAR”), the federal agency charged with auditing and supervising the U.S. reconstruction efforts in Afghanistan. Plaintiff sought records relating to SIGAR’s Lessons Learned Program (“LLP”), specifically the “full, unedited transcripts and complete audio recordings of all interviews conducted for the Lessons Learned program, regardless of whether they were labeled as ‘on the record,’ or if the interviewee was granted anonymity, or if they were cited in a particular report or not.”
Plaintiff filed the instant lawsuit on November 14, 2018, and by June of 2019, SIGAR had processed the FOIA request and produced hundreds of responsive records. But it redacted some material and declined to produce other documents in full under various FOIA exemptions, and the parties filed cross motions for summary judgment. The Court granted both motions in part and denied both in part, and it directed the defendant to provide additional information to justify withholdings that remained in dispute.
The September 30, 2021 order by District Court Judge Amy Berman Jackson is available to read here:
Below is an excerpt on high ranking and low ranking government officials:
Defendant maintains that it properly withheld information from informants interviewed by SIGAR, see Def.’s Mem. at 15–18, including high and low-ranking government officials who could be classified as “public” officials. Id. at 21–28. Defendant’s declarant explained that “[t]here does not appear to be any definition in law or regulation of the term ‘high ranking’ as applied to government employees,” Fifth Hubbard Declaration ¶ 13, and so SIGAR created its own “objective standard”:
In an attempt to use a bright-line definition in the context of the lessons learned program and to minimize subjectivity, SIGAR concluded that a “high ranking” government employee was anyone appointed by the President and confirmed by the Senate. This includes all ambassadors, generals, and admirals, all cabinet secretaries and heads of agencies, and all deputy secretaries, under secretaries, and assistant secretaries. In addition, informants who were obviously public figures with policy-making or other independent authority could be “high ranking” government employees, e.g., an individual appointed to an “acting” high-ranking position, or a special envoy.
In its cross motion for summary judgment, plaintiff claims that defendant mischaracterized some high-ranking public officials as low-ranking public officials, Pl.’s Mem. at 12–14, and that it then improperly balanced their privacy interests against the public interest in the information. See id. at 15–19.
Plaintiff accurately points out that the privacy interest diminishes and public interest increases as an official’s rank increases, see Pl.’s Mem. at 12, quoting Stern v. FBI, 737 F.2d 84, 92 (D.C. Cir. 1984), and it takes issue with the designation of five individuals as “low-ranking” or “low level” employees:
• the former Senior Advisor on Afghanistan and Pakistan to the Under Secretary of Defense for Policy;
• the former Senior Director for Afghanistan on the National Security Council;
• the Director for Afghanistan and Pakistan on the National Security Council staff;
• the former special assistant to NATO’s commander in Afghanistan, General Stanley McChrystal; and
• a senior adviser to the State Department’s Special Representative for Afghanistan and Pakistan.
Pl.’s Mem. at 13–14.15 According to plaintiff, based in part on publicly available biographies, these individuals held more important posts than the Third Vaughn Index would indicate, and therefore, the representations are “suspect,” and defendant’s declaration and Vaughn Index are “in bad faith and should be given no weight.” Pl.’s Mem. at 14.
While one can argue that these individuals played roles of importance, plaintiff has not identified evidence in the record that would overcome the presumption of good faith that attaches to the declarations. All are senior advisers to high-level decisionmakers. So while these credentialed individuals may outrank many government employees, they were not high-ranking government officials with decision-making authority that can be likened to the agency itself.

 

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US Embassy Nicaragua: Comments by Military Attaché “did not accurately reflect” USG Policy

Via La Gente:
…el Oficial Principal para Asuntos de Defensa y Agregado de Defensa de los Estados Unidos de América, Teniente Coronel Róger Antonio Carvajal Santamaría, expresó: “Nosotros esperamos trabajar con las fuerzas armadas de Nicaragua, en las áreas que usted indicó. Ese ha sido el mensaje que yo he dado, que he hablado con mis superiores, y espero seguir en esa ruta. Me da gusto de verlo en buena salud, la verdad es que nos preocupa porque ustedes son gran parte del gran crecimiento y estabilidad de este país”.
… the Chief Officer for Defense Affairs and Defense Attaché of the United States of America, Lieutenant Colonel Róger Antonio Carvajal Santamaría, said: “We hope to work with the Nicaraguan armed forces in the areas that you indicated. That has been the message that I have given, that I have spoken with my superiors, and I hope to continue on that route. I am glad to see you in good health, the truth is that we are concerned because you are a great part of the great growth and stability of this country ”.
The AP reports that “Carvajal’s comments “did not accurately reflect” U.S. government policy, the official said, adding that Carvajal had concluded his mission and departed Nicaragua.”

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Now Showing: Brutal Dictator Launches National Plan For Human Rights as USG Withholds a Fraction of $1.3B Military Aid

 

Snapshot: @StateDept Entities Involved in Lebanon Evacuation (2006)

 

General Mark Milley apparently told lawmakers on a briefing call that the Afghanistan evacuation is “This is probably going to end up as the second largest non-combatant evacuation operation ever conducted by the United States.” How close could this be to becoming the largest NEO?
One of the largest evacuations conducted by the State Department with DOD prior to the current one is the evacuation of US citizens from Lebanon in 2006. Nearly 15,000 American citizens were evacuated from Lebanon via Cyprus between July and August 2006.

 

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@StateDept Provides Updates on Afghanistan Evacuation: 42,000 Relocated Since End of July

 

It has been over a week since the fall of Kabul. The State Department continues its evacuation from the capital city of Afghanistan. Since the end of July, approximately 42,000 people reportedly been evacuated and relocated. As of this writing, the State Department has not released the number of Americans evacuated from Afghanistan supposedly “in part because that number changes all the time.” This evacuation may be chaotic, but one thing consular folks would definitely track is the Amcit status of evacuees.
How many Americans are in Afghanistan? Estimates vary from 10,000 to 15,000 U.S. citizens in Taliban-controlled Afghanistan according to Reuters. The report also cited Pentagon Spokesman John Kirby who put the number between 5,000 and 10,000 for U.S. citizens  believed to be in the Kabul area. On August 24, NBC News quoted the Pentagon spox saying: “As of today, August 24, we have evacuated approximately 4,000 American passport holders plus their families. We expect that number to continue to grow in the coming days.”
The State Department’s  F-77 report would have an estimate of the number of Americans in the country prior to fall of Kabul.  The report submitted annually provides an estimation of the number of private American citizens in a country, based in part on traveler registration, and is used by State and DOD in planning for and conducting evacuations of American citizens. Of course, reporting a U.S. citizen’s presence overseas at a US Embassy is not mandatory. Dual national may not also report their presence, and could not be counted. While the F-77 data is not perfect, it will have an approximate number of how many Americans post’s believe would need support in an evacuation.
Via the State Department Press Briefing, August 23, 2021:

— …From 3:00 a.m. on August 22nd to 3:00 a.m. on August 23rd, 28 U.S. military flights evacuated approximately 10,400 people from Kabul.

—  Since August 14th, the U.S. has evacuated and facilitated the evacuation of approximately 37,000 people.

— Since the end of last month, the end of July, we have relocated approximately 42,000 people.

— … officers from the U.S. missions in Mexico, Canada, Brazil, and India are assisting, as well as many consular staff from this building and from throughout the Washington, D.C. region.

— The United States wants to sincerely thank the governments of Qatar, Kuwait, Bahrain, the United Arab Emirates, Germany, Italy, and Spain for their help in our efforts to safely transit U.S. citizens, at-risk Afghans, and other evacuees from Afghanistan.

— The temporary transit locations we have established at U.S. or joint bases in Germany, Italy, and Spain have capacity to process at least 15,000 people on a rolling basis, significantly expanding our ability to facilitate the relocation of U.S. citizens and at-risk Afghans from Afghanistan.

Doubled Consular presence on the ground. How many?

QUESTION: Okay. Secondly, also really briefly, are you guys still sending consular and other people to Kabul to work at the airport, or has that now – have you now reached the – what you need?

MR PRICE: Well, so we are always evaluating the situation on the ground to determine that we have the right staffing posture to accommodate the tasks that we need to take on. We talked about this last week, but as of late last week we had doubled the number of consular officers on the ground in Kabul. We had sent additional consular officers to some of those initial transit sites in the Gulf, including to Qatar, to Kuwait, and the UAE. But the broader point I would make is that we have been able to take advantage of consular officers throughout this building and around the world.

QUESTION: Okay. But I’m not interested in the broader point. I’m just interested in an answer to the question. Are you still sending people there?

MR PRICE: If —

QUESTION: And if you’re not – which is fine if you are or not, I just want to know if you’re still ramping up. And then on the opposite end of that is that we are approaching the 31st, and if there is no extension in this, you guys are going to have to start thinking, and I want to know have you already started thinking about drawing them back down again if, in fact, they are going to leave, or if you guys think that maybe you can go back to the embassy.

MR PRICE: Well, we are always evaluating what we have on the ground compared with our needs. If we need more people on the ground, we won’t hesitate to do it. We came to that conclusion last week. That’s why we doubled the presence of consular officers on the ground.

Has the Secretary spoken with anyone?

QUESTION: Okay, last one. Yesterday – and I didn’t see this interview; I saw the first one, I didn’t see the second one – in the CBS interview, the Secretary, according to the transcript that you guys put out, misspoke and said that he had spoken to President Karzai. And I’m less interested in his misspeaking and more interested in knowing whether or not there has been any discussion between the Secretary or anyone else, like Zal or anyone, between the U.S. and former President Karzai, or Abdullah Abdullah, or the others who are now in discussions with the Taliban leadership.

MR PRICE: Absolutely. So, as you know, Matt, there continues to be dialogue between the Afghans – that is to say, representatives of Islamic Republic – and the Taliban. For our part, we have been in touch with relevant and key stakeholders, individuals who are taking part in intra-Afghan discussions with the Taliban. We’re not in a position to read those calls out. This has been primarily on the part of our team in Doha, our team on the ground in Afghanistan, to make sure that we have a regular line in to those Afghan stakeholders.

QUESTION: So the Secretary has not been in touch with —

MR PRICE: No.

Local Staff Questions

QUESTION: Ned, my colleague reported that on Saturday a cable came here – a memo was sent to Afghan staff at the embassy on Wednesday inviting them to head to the airport and that it was so difficult for them to – the physical situation was simply impossible, and that some staff reported being separated from children. They said, quote, “It would be better to die under the Taliban’s bullet than face the crowds again.” One staff member said they felt betrayed, that it was – it undermined their sense of dignity, their loyalty. This is embassy staff who should have been presumably prioritized, but they were left behind when the evacuation took place, basically.

MR PRICE: …. We have an obligation to these individuals, a sacrosanct obligation. They have served the United States. They have not only worked for us, they have worked with us. Our embassies around the world could not function without locally engaged staff. That is as true in Paris or London as it is in a place like Kabul. So we absolutely have a responsibility to these individuals who have worked with our colleagues on the ground in Kabul and, in some cases, over years or even longer. They are absolutely a priority in terms of our evacuation and relocation planning.

As you know, Andrea, we are now in a position to offer tailored, personalized advice to those we are relocating from Afghanistan, to those we are evacuating from Afghanistan. We’ve been doing that, of course, to American citizens. We’ve been doing that to Special Immigrant Visa applicants. We’ve been doing that to other Afghans at risk. But our locally engaged staff, they are absolutely a priority, they are absolutely part of our plans, and that commitment to them, to their safety and security, is something that is in no way diminished.

QUESTION: Well, couldn’t they – why weren’t they on the original evacuation from the embassy?

MR PRICE: So when the embassy was evacuated and our personnel started to make the way from the embassy in Kabul to the secure facility on the airport compound, many of, if not all of, our locally engaged staff were not present on the embassy compound at that time. They were working remotely given the volatile security situation. Many of them were at home, were not at work. I can tell you that we have been able to relocate members of our locally engaged staff, but they were not brought to the airport compound with the American direct hires at that time just because they weren’t at the embassy compound by and large that day.

Vetting evacuees

QUESTION: But I’m asking you a different question. Surging resources doesn’t answer the question as to why not do this at the third country – surge them there and get them out of Kabul, where they can have better facilities, sanitation, food, et cetera.

MR PRICE: Well, that vetting by and large is taking place at these third countries. When it comes to SIVs, again, all of those who have received instructions to come to the airport have already completed certain stages of the security vetting process. So that initial vet on these individuals has been completed. In many cases, they’re then taken to a third country, where they will undergo more rigorous vetting if it hasn’t yet been completed.

But that is very much the point of the network of transit countries and partner countries throughout the Middle East, throughout Europe, the rest of the world – more than 26 countries across four continents. It is in part a system that will allow us to provide safe haven to these individuals who in some cases – well, in all cases before they come to the United States, but in some cases still need to complete part of that rigorous vetting process.

Number of Americans evacuated –  no precise figure

QUESTION: Hi, thanks. A couple of questions. One, the National Security Advisor in his briefing at the White House earlier today was asked for the number of American citizens who have been evacuated. He indicated he would give that number out; he just didn’t have it at hand. Do you have that number?

MR PRICE: I don’t have a precise figure to give you, in part because that number changes all the time. Just within the past 24 hours, again, more than 10,400 people. We are evacuating thousands upon thousands of people per day, so I just don’t have that figure to provide right now.

What happens after August 31st?

QUESTION: One final quick point. When you say the Taliban has made commitments, does the Taliban understand that given the U.S.’s commitment to its citizens, to SIV applicants, and to others in that pool, that if this operation needs to go beyond August 31st the Taliban must allow that operation to continue?

MR PRICE: Look, this is a decision that only one person will be able to make. That person is not in Afghanistan. That person is not in this building. That person sits in an office without corners in the White House. President Biden will ultimately have to decide when this operation will come to a close. I can tell you that it is our goal to move as quickly as we can and as efficiently as we can to bring to safety as many people as we can. And I think you are seeing in the metrics in recent days and certainly over the past 24 hours that we are making good progress on that.

It is not our goal to be there one day, one hour, one minute longer than is absolutely necessary, but not going to get ahead of that.

 

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Philippine President Duterte Retracts Kill Order For Visiting Forces Agreement With the United States #VFA

 

In February 2020, the Philippines sent the United States  a Notice of Military-Pact Termination.  On July 29th, during Secretary of Defense Lloyd Austin’s visit in Manila, the Philippine Defense Secretary tweeted that the Visiting Forces Agreement (VFA) is “in full force again after Secretary Austin’s meeting with President Duterte. No challenge is insurmountable between longstanding allies that are committed to attaining shared goals of regional peace and stability.”

Related posts:

USG to Mount ‘Operation Allies Refuge’ to Relocate Afghans Who Aided United States

Thank you to over 500 readers and supporters who made our continued operation possible this year. Raising funds for a small outlet that is already open and free for all to read has often been the most challenging part of running  this blog. We are grateful for your continued support and well wishes. Grazie — DS

 

 

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Related posts:

Related item:

Yesterday’s News Today: U.S. Quietly Slips Out Of Afghanistan In Dead Of Night

Thank you to over 500 readers and supporters who made our continued operation possible this year. Raising funds for a small outlet that is already open and free for all to read has often been the most challenging part of running  this blog. We are grateful for your continued support and well wishes. Thanks — DS

 

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#HavanaSyndrome: Directed-Energy Attacks Now Reported in D.C.

Once a year, we ask for your support to keep this blog and your dedicated blogger going. So here we are on Week #7 of our eight-week annual fundraising. Our previous funding ran out in August 2020. We recognize that blogging life has no certainty, and this year is no exception.  If you care what we do here, please see GFM: https://gofund.me/32671a27.  We could use your help. Grazie!  Merci! Gracias!

On April 28, NBC’s Josh Lederman reported that a group of Canadian diplomats have accessed Canada’s government of withholding information about new cases of brain injury resulting from “Havana Syndrome”.  The report also says that the diplomats are citing “unacceptable delays” on coordinating care for Canadians affected, including numerous children who were accompanying their parents in Cuba. “Who knows what the long-term impacts will be?” the diplomats wrote.
Who knows what the long-term effect will be for the employees affected and the family members who were at these posts? For the State Department, the magic number appears to remain at 41 for those officially diagnosed. We do not have the number of employees who were not officially counted but whose lives and health were upended by the Department’s botched response to these attacks. We do not even know how many Foreign Service kids were similarly affected by these attacks.  Given the Department’s poor track record of handing these incidents going back to Moscow in the 1970’s, we need to keep asking questions.  Congress needs to step up in its oversight.
Back in early April, one of the questions we asked the State Department is to confirm that the mystery illness has been reported domestically (WH staffer in Arlington, a couple at UPENN)?  The State Department refused to answer that question and all our other questions.  See the rest of the questions here: Havana Syndrome Questions @StateDept Refuses to Answer.  We added a submitted question: #17. Why not expand the mandate of Ambassador Spratlen to include instances of previous microwave attacks, since those episodes were handled so badly by the State Department? Here is a little background: https://shoeone.blogspot.com/2013/09/moscow-microwaves.html
CNN is now reporting that “federal agencies are investigating at least two possible incidents on US soil, including one near the White House in November of last year, that appear similar to mysterious, invisible attacks that have led to debilitating symptoms for dozens of US personnel abroad. Multiple sources familiar with the matter tell CNN that while the Pentagon and other agencies probing the matter have reached no clear conclusions on what happened, the fact that such an attack might have taken place so close to the White House is particularly alarming.”
So there. Now that this has become “particularly alarming,” maybe we’ll learn some more?
Pardon me, what do you mean  …. “NO”!?
Recent related posts:

Related posts:

@StateDept’s Vaccination Efforts For Overseas Posts Under Fire, a Test for @SecBlinken

 

Hey, did you see that  DOD is shipping Moderna COVID-19 vaccines overseas for military families?
This is the pandemic of our lifetime. Half a million Americans are dead and many more will die before this is over. DOD has a larger global footprint than the State Department. It has an expansive regional presence around the world.  Why isn’t State working with DOD and HHS to get all overseas USG personnel and family members vaccinated?

Dear Secretary Blinken, Secretary Austin, HHS Acting Secretary Cochran, can you please get this done?

Can we please have Secretary Blinken talked to Secretary of Defense Lloyd J. Austin III and HHS Acting Secretary Norris Cochran so we can get this done? If there’s a will, there’s a way. Simple as that. We sent these employees and their family members overseas to do work for the U.S. Government. The least we can do is to ensure that they get vaccinated as they continue to do their work on our country’s behalf. Why is that hard?
Do we really want our diplomats to deliver their démarches to their host countries in the morning and then have them beg for vaccines for themselves and their families in the afternoon?
C’mon!
We understand that the State Department’s COVID-19 vaccination efforts at overseas posts have come under fire. Yes, we’ve heard about the SBU Kosovo cable, and no, we have not seen it. One FSO told us it was a “blistering critique”, another FSO who read it told us it was “whiny”.  It looks like the cable got leaked fairly quickly to NBC News and New York Times. Politico’s Nahal Toosi previously had a thread on Twitter about it. Have you read the cable? What do you think?
News of the Kosovo cable is in addition to the recent reporting from WaPo’s John Hudson – Vaccine shortage prompts U.S. diplomats to request doses from foreign governments, including Russia. That’s the piece that includes an item about “State Department personnel appealed to Moscow for doses of its Russian-made Sputnik V vaccine after Washington could not promise the delivery of U.S.-made vaccine doses in the near future.” Oy! Who did that? A vaccine with no FDA approval? That report also says that in China some U.S. personnel have complained about being subjected to anal swab tests for the coronavirus by Chinese authorities. Double oy! More from WaPo:
The invasive technique has been heralded by Chinese doctors as more effective than a nasal swab despite the unpleasant nature of the procedure. In response to questions about the anal swab testing of U.S. officials, a State Department spokesman said the department was “evaluating all reasonable options” to address the issue with the aim of preserving the “dignity” of U.S. officials “consistent with the Vienna Convention on Diplomatic Relations.”
In a report about anal swabs,  Omai Garner, PhD, an associate clinical professor, clinical microbiology section chief, and point of care testing director in the Department of Pathology and Lab Medicine at UCLA Health said that “it became very apparent, like most other respiratory viruses, the most accurate place to find it is in the upper respiratory tract, so this is why I was a little bit surprised and confused by the reports coming out on large scale anal swab testing.”
What now?
Back in January, two diplomats tested positive of COVID-19 upon arrival in Guangzhou, China. The other passengers from the same flight, some 86 State Department folks apparently were all considered close contacts and placed in “centralized quarantine” for 21 days. The Chinese Government also informed Consulate General Guangzhou that it would “strictly enforce the separation policy” which means one adult/one room.  There was one mention of NAT nasal swab/throat swab but none about anal swabs. Yes, we did ask the State Department and USCG Guangzhou about this at that time but our email got chewed madly bad in an email grinder, never to be seen again. Either that or …
…. holy mother of god and all her wacky nephews please do not/do not make the dog eat our emails!
In any case, we sent a few question to the State Department’s Public Affairs shop asking if they could address the State Department’s vaccine delivery issues at overseas posts. We did say please, too, you guys! But to no avail.
It is our understanding that  State ordered enough vaccine, but HHS is refusing to turn over the entire allotment. Purportedly, the current administration also made a choice not to prioritize government workers (no matter where they serve, etc.) over average Americans in the vaccination. We asked if this is an actual policy on vaccine distribution but got no response.
We also wanted to know if Secretary Blinken is pushing the Biden Administration and HHS to release the remaining supply for DOS so State employees overseas get vaccinated and do not have to beg for those vaccines from their host countries.
We pointed out that given the State Department’s botched response to the Havana Syndrome, some overseas folks were understandably concerned that the health and safety of our people overseas does not matter back in DC.
Perhaps part of these concerns and anxieties also stem from the anecdotal evidence that some minor political appointees reportedly got their second shots just days before they left their jobs on January 20. And weren’t the same folks in charge of vaccinations at State before January 20 the same people in charge of vaccination decisions now?
Anyway, we waited. And we waited. And we waited for a response. We are sorry to report that we have not received a response to-date.
Source A did tell us that communication is spotty, and that there is frustration with Secretary Blinken for not saying anything about the vaccine shortage at State.  “At the moment, the feeling is that it’s not a priority of his.” Apparently, vaccines were originally promised sometime in December, then it became January, then February. This has now been replaced according to this same  source to what amounts to a message of  “we don’t know when you will get it.. maybe this summer.. you should get it locally if you can.”
So folks really just want to hear from their boss saying this is a priority, and that he’ll do something about it.
A second source, Source B,  told us that the leadership at State is communicating much more effectively to explain what the plans and rules are compared to Pompeo’s tenure  and pointed to a recent Zoom call attended by over 1,000 participants.
Source B who is familiar with the developments confirmed to us that State never got all the vaccines that HHS promised and that former Secretary of State Pompeo did call Secretary Azar but got nowhere. We do not know at this time if Secretary Blinken has pushed back or if he is working with HHS to obtain the full allocation for State. It is worth mentioning that the State Department currently does not have a nominee for the position of Under Secretary for Management. The position is currently filled in an acting capacity by the Senate-confirmed DGHR Carol Perez. We should note further that the calamitous response to the Havana Syndrome also occurred during a span of time when the State Department fired its Senate confirmed Under Secretary for Management, and no nominee was confirmed over a lengthy period, leaving only an Acting M. Another lesson not learned, eh?
Our understanding is that “a very small portion of domestic employees” has been vaccinated. One explanation was that for folks working in the buildings in DC, State is able to get almost all of them covered at the same time, whereas at overseas missions, there needs to be enough vaccines for all under Chief of Mission Authority. That is, all American and local employees from all agencies plus all American family members (folks reporting to combatant commands are not considered under COM authority).  A separate issue has to do with getting the vaccines to overseas posts via the cold chain.
If you’re on Twitter, go ahead and tag @SecBlinken, @SecDef, and @HHSGov.
Now we wait and see if anything gets done or if y’all need to start eating nine gin-soaked raisins for your health.