On Tuesday, April 2, 2019, the University of Washington Center for Human Rights celebrated the success of a hearing in federal district court regarding its ongoing Freedom of Information Act lawsuit against the US Department of Defense and Southern Command (SOUTHCOM). At the hearing SOUTHCOM agreed to release relevant portions of two previously unseen collections of intelligence documentation on the armed conflict in El Salvador. This marks an important step towards U.S. government accountability for information declassification.
Since the UWCHR filed suit under FOIA in December of 2017, SOUTHCOM has denied it has relevant documentation from the early 1980s, despite the agency’s direct involvement in military operations and security cooperation during the country’s 12 years of armed conflict; and the existence of previously-declassified SOUTHCOM documents regarding El Salvador in the public domain. Access to this information is ultimately critical to human rights advocacy and legal efforts in El Salvador today, as the prosecution of war crimes in the Central American country, such as the trial for the El Mozote massacre, moves forward in an increasingly precarious political and judicial climate.
During the hearing, SOUTHCOM’s legal counsel initially reiterated its stance that the agency does not possess, nor is responsible for, the retrieval of documentation it may have produced during the time period relevant to UWCHR’s FOIA requests. The agency has claimed that this type of information would have been destroyed or transferred out of the agency’s legal custody years ago; however, UWCHR’s analysis of SOUTHCOM’s own policy manual for records disposition indicates that it is unlikely that the records of interest were destroyed, but instead remain in Inactive Storage Facilities. Known informally as “document purgatory,” records in inactive storage are destined for eventual transfer to the National Archives, but during their time in storage they are almost entirely inaccessible.[1] Yet the U.S. Code of Federal Regulations on records disposition states that “records transferred to a records storage facility remain in the legal custody of the agency”.[2] For this reason, UWCHR has insisted that SOUTHCOM must obtain and release these records.
Senior U.S. District Judge Marsha J. Pechman sided with the UWCHR regarding its demand for the prompt release of information by the agency, expressing her impatience with SOUTHCOM and stating that “if there is material there, then the people in El Salvador have a right to know”. The parties ultimately reached a verbal agreement that SOUTHCOM will retrieve and release two collections of documents to UWCHR within the next month, based on a declaration filed by SOUTHCOM to the court on April 2, 2019.
While the UWCHR will continue to pressure SOUTHCOM to comply with the provisions of FOIA, the Center eagerly awaits this new cache of documents, which will be carefully reviewed and shared with local and international partners, and will be available to the public through the University of Washington Libraries El Salvador FOIA collection at a future date.
No public funds are involved in UWCHR’s strategic FOIA litigation efforts.
Notes
[1] See pp. C-65 to 72 of JOINT STAFF AND COMBATANT COMMAND RECORDS MANAGEMENT MANUAL: VOLUME II-DISPOSITION SCHEDULE (CJCSM 5760.01A, Vol.II 13 July 2012). This manual explains the types of documents that SOUTHCOM would consider to be permanent, and thus would not be destroyed but transferred to an Inactive Storage Facility (for eventual retirement at the National Archives and Records Administration) or directly to NARA after a period of 25 years.
[2] See Subpart H, pp.605 of 36 C.F.R. § 1228, Disposition of Federal Records.
