Broken FOIA, Indiscriminate Use of B5 Exemption
Washington, D.C., September 26, 2023 - Nine years ago today, 43 Mexican college students were violently abducted and disappeared by police and drug traffickers in the town of Iguala, Guerrero. As the families of the missing boys mark another wrenching anniversary and the investigation in Mexico grinds on, the National Security Archive takes a look at the declassified record on Ayotzinapa in the United States and asks, Why has the U.S. government released so little information about this case?
Since 2017, the National Security Archive and our colleagues at the Center for Investigative Reporting (CIR) have filed over 150 Freedom of Information Act (FOIA) requests about the attacks against the students of the Ayotzinapa teacher-training school, the investigations that followed, and a related DEA operation targeting Mexican drug traffickers who were distributing huge quantities of heroin in Chicago, Illinois. We hoped to obtain new facts about a case that had been muddied and obscured by investigators in Mexico. We also wanted to know whether the shocking crime had any impact on U.S. policy in Mexico. Did the revelations about the case affect U.S.-Mexico relations? In particular, did concerns about Ayotzinapa have any impact on the longstanding cooperation between the two countries in waging the so-called “war on drugs”?
Yet despite our many requests – and the filing of two FOIA lawsuits – over the years we have received what amounts to crumbs: news clips, public reports, transcripts from press conferences, emails so heavily redacted as to be illegible, and thousands of censored pages of “unclassified” documents.
The secrecy is especially puzzling given the intense concern expressed by American officials at the time of the attacks and throughout the years since then. In 2014, President Barack Obama called the mass disappearance an “outrageous tragedy.” The State Department said it was a “terrible crime.” A bipartisan group of United States senators urged then-Secretary of State John Kerry to press Mexico to investigate and “help bring closure to the victims’ families.” Year after year, the State Department’s annual human rights report on Mexico reviews the status of the Ayotzinapa case and underscores the impunity that fueled it.
But U.S. concern has not translated into U.S. transparency, and most of the relevant records remain closed to public scrutiny. In this posting, we’ll examine the two most likely reasons. First, and most broadly, the right to information in the United States has deteriorated sharply in recent years, with an overburdened classification system and an increasingly dysfunctional FOIA. Many of the agency responses we got to our Ayotzinapa requests demonstrate a deterioration of the public’s right to know.
Second, U.S. administrations have long been cautious about publicizing any differences, however mild, they may have with Mexico. After all, the United States relies on its partnership with Mexico to carry out two of its most important (and controversial) policy priorities: migration and the drug war. Is access to U.S. information about Mexico constrained by the same official caution? Is silence safer?
The Freedom of Information Act is Broken: Ayotzinapa Edition
It won’t be breaking news to readers of the National Security Archive’s website to say that government secrecy is on the rise in the United States – and has been for decades. The end of the Cold War ushered in a brief but shining period of openness during the 1990s, when the Clinton administration announced it would treat government information with a new “presumption of disclosure.” Hundreds of millions of pages of agency documents were declassified before the 9/11 attacks brought an abrupt halt to the transparency trends and the tide of secrecy surged to new heights.
The Freedom of Information Act has not fared well in the Information Age. The Biden administration’s effort to update declassification rules appear to have stalled, and agencies are struggling to manage the explosion of electronic records as the government goes digital. At the same time, the National Archives – the institution responsible for safeguarding and providing access to the country’s historical records – has seen its budget stagnate in real dollars for nearly 30 years. Backlogged FOIA requests have steadily grown since 2012, meaning agencies aren’t keeping pace with their responses; in FY 2020, the government was behind by about 150,000 requests. In 2022, the Senate Judiciary Committee held a hearing on the right to information that pointed to poor FOIA performance across federal agencies, a lackluster commitment to openness by the new Biden administration, and no consequences for agencies that fail to comply with the law.
Even senior officials have spoken out about the failings of the secrecy system. Director of National Intelligence Avril Haines has repeatedly expressed concerns about overclassification – that is, the tendency of agencies to stamp billions of records “secret” automatically. In a keynote speech at the LBJ Presidential Library in January 2023, Haines called overclassification an “urgent challenge,” one that undermines key democratic values such as “increasing transparency to promote an informed citizenry and greater accountability and … the basic trust that the public has in its government…” (See minute 6:05)
This context of overclassification, FOIA backlogs, and poor agency performance may explain why the U.S. government has released so little information about the notorious Ayotzinapa case. The inadequacy of the responses is consistent across all six agencies (CIA, DEA, Justice, State, Defense Intelligence Agency, and U.S. Northern Command), and the disappointing returns fall into several broad categories.
1. Information released comes directly from media reports
In response to our requests, most of the six agencies wasted our time (and theirs) by “declassifying” public, open-source information obtained through media reports. For example, the CIA sent 27 partially declassified documents containing fragments of text about aspects of the Ayotzinapa case, all derived from reports by press outlets such as the Associated Press or (in this example) Mexico’s El Universal.
Among the documents released by the DEA, the agency included 630 pages of “KNRs” – a compilation of news clips distributed within the agency by the DEA’s field division in Phoenix, AZ.
2. Information denied, illegible information, and arbitrary redactions
Every agency withheld multiple documents citing various FOIA exemptions. Some agencies didn’t specify how many records were denied in full, leaving us in the dark as to the scope of their review (and the appropriateness of their denials). They included the Department of Justice, the agency charged with overseeing the proper functioning of the FOIA for the federal government.
We also received some information that was so heavily excised as to be unreadable, even in the case of records marked “unclassified.” In several instances, we received different versions of a single document with entirely different redactions – a graphic demonstration of the arbitrariness of the FOIA review process as a whole.
For example, the State Department released three versions of a cable sent on February 5, 2020, titled Mexico: López Obrador Administration Has Mixed Results on Human Rights. The cable is marked “sensitive but unclassified” and contains bland observations about the Mexican government’s human rights record. One version was disclosed in full (except for the names of State Department employees). But two subsequent versions withheld portions of even the most innocuous comments about Mexico’s human rights policy – beginning with the document’s title itself (Document 8).
The FOIA reviewers of these two redacted versions evidently did not agree on what text qualified as “national security information” since they redacted different sections of the same record under two different exemptions. It is impossible to make sense of their declassification decisions, comparing the versions side by side.
3. Abuse of the B5 exemption
By far the most common abuse of the declassification process in the records released to us is the heavy-handed reliance on the FOIA’s Exemption 5 to censor huge swathes of text in unclassified records. The exemption allows agencies to withhold certain intra-agency and deliberative documents (such as drafts), but FOIA users have noted for years the government’s indiscriminate use of B5 to shield all kinds of information, whether or not it could legitimately be considered “deliberative.”
In the case of the Ayotzinapa documents, the B5 functioned like an invasive weed, popping up repeatedly and extensively in hundreds of pages released to us. The Department of State was the worst offender. Time and time again, State Department reviewers withheld records under B5 that did not fit the criteria established by the law.
Take a look, for example, at a one-page backgrounder from December 2014 that discusses the students’ disappearance and the Mexican government’s investigation.
In this “sensitive but unclassified” text, an official in State’s Bureau of Western Hemisphere Affairs lays out the facts about what happened, two and a half months after the 43 boys went missing. Calling the case a “political crisis” for President Peña Nieto, the document is blunt:
The disappearances, missteps in the investigation and discovery of many unmarked graves, galvanized massive public outrage over indiscriminate violence, cartel influence over public officials, poor state-local-federal cooperation, and weak rule of law.
There is no way to justify the withholding of this document as an “intra-agency” communication (unless everything sent from one official to another within the State Department qualifies as such) or as a draft. The use of Exemption 5 in this case is simply contrary to the law.
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What did we learn?
Despite the government’s censorship of information released on Ayotzinapa over the years, the documents declassified in response to our FOIA requests do have a story to tell. It’s clear that the United States was fully aware of the enormity of the crime, the urgent need for a rapid and credible response by Mexico, and the Peña Nieto administration’s failure to deliver it. The U.S. also knew that – contrary to Mexico’s narrative about what happened, which claimed that small-time criminals partnered with local corrupt police to disappear the boys – the forces behind the disappearances were powerful and had allies at every level of the Mexican government.
We received declassified reports from the Drug Enforcement Administration that revealed new information about Guerreros Unidos, the Iguala-based criminal group that colluded with security forces to kidnap (and likely kill) the students. In 2014, Guerreros Unidos had a robust drug trafficking business bringing narcotics north from Iguala into the United States. A DEA investigation out of Chicago tracked their operations for months, resulting in indictments of eight members. The 2015 DEA intelligence report released to us conveys the magnitude of Guerreros Unidos’ infiltration of the Midwestern narcotics market at that time – when the Peña Nieto government was still describing the GU as a local gang of thugs (Document 1).
Three years after the DEA broke up the Chicago GU cell – and despite an “intense crackdown” by Mexican authorities due to the gang’s role in kidnapping the 43 students – a 2017 DEA report about Guerreros Unidos calls them a “growing concern.” According to the report, Guerreros Unidos was stronger than ever, had expanded its presence beyond Chicago into Atlanta, Austin, Houston, and NYC, and was considering new routes into Washington State (Document 2).
Weeks after the 43 boys were disappeared, the Mexican president published a new, 10-point plan to address “long-standing problems of violence, impunity, and corruption,” but the State Department was skeptical. In order to reduce violence and rebuild public trust, wrote one official, “the plan will need support from the main political parties and a stronger focus on strengthening the rule of law than the administration has yet shown” (Document 4). As the years went by, U.S. officials voiced increasing doubts about Mexico’s capacity to explain what happened to the students and actually bring the perpetrators to justice. In one 2018 document, the State Department described mounting cases of forced disappearance in Mexico as a “human rights crisis,” and reviewed the series of disasters associated with the Ayotzinapa case in particular: the government’s failure to prosecute anyone for the crime, its use of torture against some suspects, and its fabrication of evidence (Document 7).
Beyond skepticism about the case, Washington faced a real choice: would the disappearance of the 43 students and the Peña Nieto government’s blatant manipulation of the investigation have an impact on U.S. policy toward Mexico? The Mexican military was a key ally – not only in the decades-long drug war that targeted traffickers in the country, but also in helping slow the flow of migrants over the U.S.-Mexico border. Mexico’s military leaders denied the armed forces were involved in the crime, but the families of the 43 strongly suspected military involvement in what happened to their sons. One month after the attacks, the DIA reported on nationwide protests over Ayotzinapa and suggested that any increase in the army’s presence in Guerrero “could provoke violence” (Document 3).
The United States had mechanisms in place to respond to military human rights abuses. Since 2009, Congress has required that human rights-related conditions be met before U.S. Foreign Military Financing (FMF) assistance and training go to Mexico’s security forces. The annual evaluations are imposed through the State Department’s so-called 15- and 25-percent reports. As a consequence of heightened U.S. concerns about the military’s human rights record during the Peña Nieto administration (including about Ayotzinapa), FMF funds were withheld in FYs 2014 and 2017. Despite this, the Pentagon still reported “unprecedented levels of coordination” between the U.S. and Mexico. A set of talking points from the U.S. Northern Command insisted that the Mexican military was a trusted institution and a strategic partner for the United States, despite widespread allegations of human rights violations (Document 10).
Some members of Congress tried to get the U.S. to increase pressure on Mexico to respect human rights. Rep. Alan Lowenthal pushed the State Department in 2016 to condition aid to Mexico, citing the Mexican government’s failure to cooperate with international experts on the Ayotzinapa investigation (Document 5). Two years after the disappearance of the Ayotzinapa students, Senate staffer Tim Rieser met with Deputy Assistant Secretary John Creamer to express his extreme frustration with the State Department’s decision to provide the full amount of FMF funds that year. Rieser called the Peña Nieto administration “corrupt and abusive” and the Government of Mexico “a criminal enterprise,” noting its defensive reaction to U.S. pressure to improve its human rights record. The decision to allow the funds reinforced impunity and allowed the Mexican army to continue to be “unaccountable,” according to the Senate staffer. But even Congress, Rieser noted, had toned down efforts to condition security funding to Mexico, “in deference to Mexican sensitivities” (Document 6).
“Mexican sensitivities”
“Mexican sensitivities” is a cliché of U.S.-Mexico relations – references go back to the first iteration of the drug war in 1969, when Nixon’s State Department asked the U.S. Embassy in Mexico for a read on “Mexican sensitivities” in the event that the U.S. unilaterally closed the border to halt the flow of drugs. (Spoiler alert: The U.S. did, and Mexico was sensitive.) They were invoked again in 1973 when Secretary of State Henry Kissinger was trying to convince Mexico to accept U.S. helicopters to step up poppy- and marijuana-eradication campaigns promoted by the United States. And again, Mexico expressed sensitivities – this time about U.S. drug enforcement activities proliferating on Mexican territory.
The concept of Mexican sensitivities in U.S. foreign policy circles has typically related to Mexican concerns about national sovereignty in the face of U.S. actions that threaten to undermine Mexico’s autonomy and ability to self-govern. But what Tim Rieser was expressing to John Creamer in 2016 was something else – something that might better be dubbed “U.S. sensitivities.” His disappointment was that the United States was unwilling to truly pressure Mexico to solve the Ayotzinapa case – to locate the boys’ remains, arrest their suspected killers, hold trials, and convict those found responsible.
The conditioning of security assistance programs on good human rights performance gives the U.S. some influence over Mexico, but the U.S. has been unwilling to use that leverage to push Mexico to make the army accountable, root out corruption, and support victims, fearing that efforts to do so could lead to a backlash and complicate bilateral cooperation on two of the most politically charged issues in Washington: migration and counternarcotics. Perhaps that’s why U.S. agencies have been so reluctant to reveal even unclassified U.S. documents about Ayotzinapa and continue to conceal what U.S. agencies know about one of Mexico’s most egregious human rights cases.
THE DOCUMENTS
Drug Enforcement Administration
Document 1
FOIA
This assessment of drug threats from the DEA’s Chicago field office, conducted during the period when the Ayotzinapa students were disappeared (2014), is largely focused on Mexican drug trafficking organizations, including Guerreros Unidos. The report notes that Chicago has become a hub for the distribution of heroin throughout the Midwest because of the many transportation options and easy access to interstate highways. A 15-month DEA investigation of the Guerreros Unidos cartel established that “the GUC used numerous buses with concealed compartments belonging to the Monarca Bus company to smuggle cash and heroin between Mexico and Aurora and Batavia, Illinois.” The case led to the arrest of five GUC cell leaders in December 2014 and the seizure of more than 68 kilos of heroin, 9 kilos of cocaine, and $500,000 in cash proceeds. In the course of the investigation, the DEA confirmed that “this GUC cell was distributing in excess of 300 kilograms of heroin per month to the Midwestern United States.”
Document 2
FOIA
Three years after a DEA operation broke up a Guerreros Unidos cell in Chicago – and despite an “intense crackdown” by Mexican authorities due to the gang’s role in kidnapping the 43 students – the GU is stronger than ever, and has evolved into a transnational criminal organization with a drug distribution network spanning several major U.S. cities. By 2017, it has become one the leading exporters of heroin to the United States. The document gives a brief history of the GU, a one-time faction of the Beltrán-Leyva organization now in control of drug trafficking in parts of Guerrero, Morelos, and the Estado de México. Its main distribution hubs in the United States are Atlanta, Austin, Chicago, Houston, and NYC. “As one of the beneficiaries of the current national opioid epidemic,” says the report, “the GU is well-positioned to continue benefitting from sustained heroin use in the United States.”
Defense Intelligence Agency
Document 3
FOIA
In this heavily redacted digest of developments related to widespread protests in Mexico over the 43 disappeared students, the DIA notes the Peña Nieto government’s failure to address public disgust with “corruption, impunity and human rights violations.” A section on the government’s “security response” to the protests warns that increasing the presence of soldiers in Guerrero “could provoke violence” due to public perception that the military was involved in the fate of the Ayotzinapa students. The document also reveals that the Secretariat of National Defense (SEDENA) “rotated the entire 27th Infantry Battalion to Mexico City to undergo questioning regarding their knowledge of corruption in Iguala.” [The military’s interrogation of soldiers from the 27th Infantry Battalion concerning the Ayotzinapa case was not revealed to investigators or the public for years.]
Department of State
Document 4
FOIA
According to this background paper drafted by the State Department’s Mexico Desk, the U.S. was aware of the fatal flaws in the government’s Ayotzinapa investigation from the beginning. The document describes in frank terms the “political crisis” facing the Peña Nieto government for its failure to quickly resolve the case. The disappearances and missteps in the investigation have spurred broad public protests against “indiscriminate violence, cartel influence over public officials, poor federal-state-local cooperation, and weak rule of law.”
Document 5
FOIA
This one-page summary of part of a House Foreign Affairs Subcommittee hearing reflects the frustration some members of Congress felt in the face of U.S. inaction on the Ayotzinapa case. Rep. Alan Lowenthal (D-CA) raised recent reports that the Mexican government failed to cooperate with international experts who were assisting the investigation. In response to his repeated questions as to what leverage the United States had to press the Mexicans to do more, State Department officials “gave the standard TPs [talking points]” noting all the ways the U.S. supported human rights in Mexico. “Lowenthal concluded RE Iguala and experts, ‘I am terribly disappointed,’ referring to the US government’s ‘lack of response.’”
Document 6
FOIA
On the anniversary of the disappearance of the Ayotzinapa students, Deputy Assistant Secretary of State John Creamer and Senate Appropriations Committee (Subcommittee on Foreign Operations) staffer Tim Rieser meet. Rieser expresses intense frustration with the failure of weak U.S. conditions to affect the dismal human rights record of Mexican President Enrique Peña Nieto. In particular, he is disappointed that State chose to submit a “15% report,” meaning that State defended Mexico’s human rights progress despite the government’s failure to address so many human rights problems. Rieser calls the Peña Nieto administration “corrupt and abusive” and the Government of Mexico “a criminal enterprise,” noting that congressional efforts to condition funding to Mexico “had been toned down in deference to Mexican sensitivities.”
Document 7
FOIA
Between fully withheld blank pages and partial redactions under FOIA exemption b5, this 23-page collection of backgrounders examines corruption and human rights cases in the Americas, including in Mexico. In a summary of Ayotzinapa case, the document comments with skepticism on the Mexican government’s investigation, noting that, in 2016, the group of international experts (GIEI) “released a final report that eviscerated the government’s handling of the case, offered new lines of investigation, and hundreds of policy recommendations…” Despite the GIEI’s efforts, “There have been no prosecutions for forced disappearance in the case … [and in 2017] the UN released a report indicating that federal authorities had tortured at least 34 people into providing confessions that aligned with the government’s narrative of what had transpired…” Accordingly, the State Department seeks to suspend cooperation with the units of the Mexico’s Attorney General’s Office (PGR) implicated in the allegations of torture, causing some friction with the Mexicans. A section providing background on Mexican government “cyber attacks on human rights defenders” using Pegasus spyware says that, “Several agencies in the Mexican government have contracts with Pegasus for security purposes.”
Document 8
FOIA
About one year into President López Obrador’s term in office, the State Department evaluates his government’s human rights record. In this mostly favorable review, the document discusses his initiatives to locate and identify missing and disappeared people, reduce human trafficking, and investigate the Ayotzinapa case. Despite the administration’s creation of a truth commission to oversee the case and a new special prosecutor to renew the investigation, there has been “no visible progress in holding perpetrators accountable for the disappearances.” The use of torture by Mexican authorities also continues to be a serious challenge.
Document 9
FOIA
This is a declassified State Department update summarizing public information on new efforts to solve the Ayotzinapa case. The cable calls the recent arrest of military officer Cap. José Martínez Crespo “a significant step,” and agrees with Mexican investigators that forensic evidence found in a ravine in Guerrero “conclusively disproved the Peña Nieto administration’s approach to the case.” However, because the previous government used torture to extract confessions from many detainees, a number of key suspects in the case had been released by courts, causing “legal analysts” to “question whether authorities will successfully prosecute any of the organized crime figures involved in the disappearances.”
United States Northern Command
Document 10
FOIA
In this upbeat backgrounder issued by U.S. Northern Command, the Public Affairs office provides talking points on U.S. aid to the Mexican military in light of recent allegations of human rights abuses. The document repeats Mexico’s official position regarding Ayotzinapa – that “the Mexican Army was not involved in the assault, kidnapping, and alleged killings of the 43 student teachers” – and erroneously refers to the incident as an “armed confrontation.” Despite a United Nations report documenting widespread torture in Mexico, Northern Command gives full-throated support to continued military assistance for Mexico, arguing that the military is a trusted institution and a strategic partner. Under President Peña Nieto, “The military-to-military relationship between Mexico and the United States has advanced to unprecedented levels of coordination.”
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