Changes in the wording of Selective Service System record-keeping requirements, made days after the opening of an investigation into the alleged forgery of President Barack Obama’s selective service registration form, raise serious questions about U.S. Government intentions.
The new rules allow existing copies of documents that may be sought by investigators to be destroyed.
The Selective Service System’s new privacy rules were published in the Federal Register on Tuesday, September 20, 2011, four days after the September 16 announcement by World Net Daily that the Maricopa County (Arizona) Sheriff’s Office “Cold Case Posse” was opening an inquiry with full subpoena power into alleged forgery of several documents concerning Obama’s birth and draft registration.
The new rules, which constitute the first update to Selective Service System privacy regulations in eleven years, were published under the title, “Privacy Act of 1974; Publication of Notice of Systems of Records.”
Ongoing controversy surrounding allegations that some of Obama’s personal identification documents and records, including his Selective Service draft registration form, are forgeries came into sharp focus seven months ago. The “Cold Case Posse,” under the leadership of Sheriff Joseph M. Arpaio, opened an inquiry in response to those allegations.
Sheriff Joe Arpaio's second letter to Selective Service (click to enlarge)
“This is a full-fledged criminal investigation,” Michael Zullo, lead investigator, told Communities @WashingtonTimes.
“Sheriff Arpaio sent two written requests in March to the Selective Service System requesting President Obama’s draft registration records. Selective Service System officials responded to Arpaio in writing, but did not turn over any of President Obama’s registration records.”
“We believe they are stonewalling,” Zullo added. "In their latest reply letter to the Sheriff, they do not comment on, or even allude to, the microfilm being available to inspect."
Changes in the wording of the privacy rules alters the status of federal records, like the requested draft registration records, from “record copies” to “nonrecord copies.” Nonrecord copies are subject to disposal.
Previously unnoticed, the new rules allow the government to destroy microfilm copies of Selective Service registration records and may create new obstacles for law enforcement agencies that are requesting records access for investigative purposes.
Selective Service director R. Flahavan response to request for documentation by Sheriff J. Arpiao (click to enlarge)
This change also hampers media organizations and government watchdog groups from seeking records access under the Freedom of Information Act (FOIA). A second change, to a section of the rules governing the sharing of information with state and local governments, seems aimed squarely at blocking inquiries like the one launched by the Cold Case Posse.
If microfilm copies of selective service records are destroyed, it would make it difficult to prove whether or when Obama registered with the Selective Service. At issue is whether he attended Occidental College in Los Angeles as a foreign student, possibly using an Indonesian passport. Foreign students are not required to register with the Selective Service, hence if there were no record of his registration, this would raise questions about Obama’s legal status at that time. Was his status that of a U.S. citizen or a foreign student, possibly with dual passports?
A paper copy of Obama’s selective service registration card, called a form “SSS-1,” was obtained daysbefore the 2008 elections through a FOIA request by Stephen Coffman, a retired Immigration and Customs Enforcement (ICE) agent. A spokesperson from ICE, an agency of the U.S. Department of Homeland Security, confirmed that Coffman retired from the agency in June, 2007.
Selective Service card copy (click to enlarge)
Investigators with the Cold Case Posse concluded that the copy of Obama’s Selective Service registration card obtained through Coffman’s FOIA request was “fraudulently created.” Those findings were announced at a March 1, 2012 press conference in Phoenix.
“The selective service card (copy) that we showed in our press conference,” said Zullo in an interview with radio host Frank Beckmann, “We believe that document was fraudulently created to give the appearance that it was accepted [by Selective Service] in 1980.
“That has some far reaching implications, implications that the President himself – at some point in time – may have to answer for.”
Richard S. Flahavan, Selective Service System Associate Director of Public and Intergovernmental Affairs, confirmed in a March 2009 letter to Kenneth Allen that Obama did register for selective service on July 29, 1980 at a Honolulu, Hawaii post office.
The original microfilm record of that should be in the care of the National Archives and Records Administration (NARA). An independent review of the entire microfilm record, not just Obama’s record, would confirm whether the record supplied by Flahavan to Coffman and Allen is a true copy of the original document.
Review of official documents posted on the websites of the Government Printing Office, NARA, and the Selective Service System confirms that if Obama registered for selective service in 1980, the original paper card would have likely been destroyed, but only after being transferred into original microfilm records, microfilm record copies, and computer storage systems.
If the status of those microfilm copies are now “nonrecord” rather than “record,” as would be the case under the new requirement, most of those records could be permanently destroyed.
Even if the microfilm copy at the Selective Service System Data Management Center in Illinois has been destroyed, however, the original microfilm should be held at one of the Federal Record Centers, long term record facilities operated by NARA.
A popular film scenario has an investigator looking for a document confronted by hundreds of shelves filled with thousands of boxes full of documents. If the Cold Case Posse goes looking for Obama’s record, the change in classification might make its task akin to finding a specific piece of hay in a haystack.
CIA Used “Non-record” Designation to Burn “Enhanced Interrogation” Videotapes
In 2007, the Central Intelligence Agency used the “non-record” designation as defense for destroying ninety-two videotapes of alleged terrorist Abu Zubaydah. The tapes, recorded in 2002 at one or more “black sites”, reportedly showed Zubahday undergoing enhanced interrogation, including waterboarding.
“The bottom line,” a CIA spokesman asserted, “is that these videotapes were not federal records as defined by the Federal Records Act.”
A 1988 initial report by the “Task Force on NARA Responsibilities for Federal Records and Documentation” concluded that federal agencies have previously designated federal records materials as “nonrecord” to prevent disclosure of information under the Freedom of Information Act.
On July 23, 1987, the “Task Force on NARA Responsibilities for Federal Records and Documentation” was established “to review NARA’s responsibilities for Federal records, for interpreting the definition of records, and for related documentation, with special reference to records created under the Presidential Records Act of 1978.”
On February 8, 1988, the seventh Archivist of the United States, Don W. Wilson, issued the first report of the Task Force on NARA Responsibilities. On page 6 of the report, under the heading “The Concept of Nonrecords,” it was disclosed that as the concept of nonrecords management developed in the 1950s, an idea originally designed to prevent federal government offices from becoming overwhelmed by extra copies and “to make it clear that [agencies] are not obligated to consider every scrap of paper on which writing or printing appears as a record,” there also existed the risk that agencies could use the “nonrecord” designation as a convenient strategy to avoid disclosure of certain documents under FOIA.
According to the report:
“Following the passage of the Freedom of Information Act, the earlier trend by some agencies to broaden the application of the term [nonrecord] to avoid the new need for scheduling certain types of materials received a new impetus as a number of agencies attempted to exclude certain types of information from disclosure by labeling the materials containing such information as nonrecord…
The basic problem regarding nonrecord materials has been and continues to be not the concept but the application of the term.”
The decision by the Selective Service System to replace the phrase “microfilm copies” with “microfilm non-record copies” in their privacy rules appears to be only the latest example of such practices.
It remains unclear whether the Selective Service System violated the NARA Code of Federal Regulations when updating the agency’s privacy rules, and when designating the microfilm copies of selective service registration records stored at the Data Management Center under “nonrecord” status.
Specific changes to Selective Service System privacy rules
Line-by-line comparisons of Selective Service System privacy rules published in 2000 and in 2011 show two significant changes: one converting federal record copies into "nonrecord" copies; and a second restricting access by state and local government agencies to Selective Service System records.
The September 21, 2000 Selective Service System Privacy Rules governing "Retention and Disposal" read:
1. Registration Form—Destroyed by maceration when its information has been transferred onto microfilm and into the computer system. Original microfilm is stored at a Federal Records Center. A microfilm copy is retained at the Data Management Center, in locked steel cabinets. The copies are retained until no longer needed for reference purposes.
2. The record copy of microfilm and computer tape will be retained until the registrant reaches 85 years of age.
Compare this with the September 20, 2011 rules:
1. Registration Form—Destroyed by maceration when its information has been transferred onto microfilm and into the computer system. Original microfilm is stored at a Federal Records Center. A microfilm non-record copy is retained at the Data Management Center, in locked steel cabinets. The copies are retained until no longer needed for reference purposes.
2. The record copy of microfilm and computer tape will be retained until the registrant reaches 85 years of age.
According to NARA, federal records are documents that “are made or received by an agency of the U.S. Government under Federal law or in connection with the transaction of agency business.” When young men fill out selective service registration forms and mail them to the government, they are creating federal records.
According to NARA, federal records are documents that “are made or received by an agency of the U.S. Government under Federal law or in connection with the transaction of agency business.” When young men fill out selective service registration forms and mail them to the government, they are creating federal records.
Federal records are further defined by “having administrative value because they are necessary to conduct the agency’s current business,” by containing “information of value,” by being “placed in agency files,” and by being under “institutional control,” such as in locked steel cabinets at a Data Management Center.
Thus by NARA's own guidelines, the microfilm copies of selective service registration records at the Data Management Center are “federal records.”
Thus by NARA's own guidelines, the microfilm copies of selective service registration records at the Data Management Center are “federal records.”
The difference between “record copy” and “nonrecord copy” is an important legal distinction under the NARA Code of Federal Regulations. Government agencies can destroy nonrecord copies, while they must retain record copies.
The reworded rules allow the government to destroy microfilm copies of draft registration records stored at the Selective Service System Data Management Center, including the selective service records of President Obama. The new rules may also have removed those records from public access under the Freedom of Information Act.
Under the revised Selective Service System privacy rules, “microfilm non-record copies” of registration records stored at the Data Management Center, including “microfilm non-record copies” of Barack Obama’s registration records, should they be located there, “are retained until no longer needed for reference purposes”. The same retention language existed in the 2000 privacy rules before the phrase “microfilm copy” was replaced with “microfilm non-record copy”.
The retention period for the selective service microfilm copies at the Data Management Center is “until the registrant reaches 85 years of age”, according to both the 2000 and 2011 privacy rules. Temporary records with a defined retention period until disposal are still considered “federal records”.
Because President Obama is not yet 85 years of age, the microfilm copy of his selective service registration form at the Data Management Center would be retained as a “federal record” until August 4, 2046. Because the microfilm copy of President Obama’s registration records has been reclassified as a “microfilm non-record copy”, there no longer is a retention period and the microfilm can be immediately disposed and destroyed without NARA approval.
According the NARA CFR guidelines, “Nonrecord materials should be purged when no longer needed for reference. NARA's approval is not required to destroy such materials.” Any existing “microfilm nonrecord copies” of President Obama’s selective service registration records at the Data Management Center could be purged and destroyed under NARA rules, an initial analysis by Communities @WashingtonTimes.com has concluded.
Further analysis has concluded that under the revised “non-record” status, the United States of America’s entire inventory of microfilm copies of registration records in the custody of the Selective Service System Data Management Center, including entire rolls of microfilm copies of registration records processed on and around September 4, 1980, the date on which President Obama’s July 29, 1980 registration card was allegedly processed, have been eligible for disposal and destruction for the last 227 days or more.
Any disposal of such microfilm copies could hamper or eliminate the ability of Maricopa County Sheriff’s Office investigators, or others, to determine whether a microfilm copy of President Obama's registration records ever actually existed alongside other microfilm copies of records processed on September 4, 1980. The original microfilm records, which according to longstanding Selective Service System privacy rules are stored at a NARA Federal Records Center, would then be needed to prove Obama actually registered.
Investigators would then need to turn to NARA, which may be in custody of the original microfilm records at one of their Federal Records Centers. NARA maintains the National Personnel Records Center in St. Louis, as well as other Federal Records Centers throughout the United States, including Chicago IL.
According to NARA’s website, selective service records for men born after January 1, 1960 are maintained by the Selective Service System.
Barack Obama is alleged to have been born in Honolulu, HI on August 4, 1961, according to an image of his “long-form” Hawaii Certificate of Live Birth posted on the official White House website, a document which Cold Case Posse investigators now maintain was forged.
Under guidelines published on NARA’s website, Barack Obama’s selective service records would not be in the custody of a Federal Record Center, because Obama was allegedly born after January 1, 1960.
It remains unclear, however, if NARA is in custody of any original microfilm selective service registration records for men born after January 1, 1960 at any of its Federal Record Centers which are not available to the general public but may be in long-term storage for the Selective Service System.
Brittany H. at NARA's National Personnel Records Center customer service department in St. Louis on Monday, May 7, directed requests for selective service records for anyone born after 1960 to the Selective Service System in Arlington, Virginia.
Asked if NARA maintains any selective service records for anyone born after 1960 in long-term storage at any other NARA Federal Record Centers, she stated that "those records are not archived. The only long-term storage is at Selective Service."
The effect of the privacy rules on Selective Service System registration records maintained on computer storage systems remains unclear.
A minute reconfiguration of the language contained in the Selective Service System’s latest records privacy rules, discovered in the “Routine Uses Of Records Maintained In The System, Including Categories Of Users And The Purposes Of Such Uses” section of the rules, possibly diminishes or removes the authority of local and state law enforcement agencies, including the Maricopa County Sherriff’s Office, to obtain copies of selective service registration records for the purpose of collecting evidence in the course of an investigation into possible violations of federal laws, a preliminary analysis by Communities @WashingtonTimes.com has concluded.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES:
September 21, 2000 Selective Service System Privacy Rules: State and local government agencies—to provide information which may constitute evidence of a violation of State or local law, for law enforcement purposes. WAS CHANGED TO: September 20, 2011 Selective Service System Privacy Rules: State and Local Governments—To provide data that may constitute evidence and facilitate the enforcement of state and local law.
If investigators with the Cold Case Posse were to argue that the Selective Service System was required to be responsive to a records request for the purpose of the Maricopa’s County Sheriff’s Office investigation or enforcement of any violation of federal law, such as mail fraud, wire fraud, identity theft, or violations of the Military Selective Service Act, the 2000 privacy rules might have permitted such a records release, under the four-word clause “for law enforcement purposes”.
The 2011 updated rules, however, appear to have narrowed the legal requirements under which the Selective Service System must release records to local and state law enforcement agencies engaged in “the enforcement of state and local law”.
The changes could be challenging to any local or state law enforcement agencies, including the Maricopa County Sheriff’s Office, seeking to obtain a selective service card as evidence in the investigation of federal crimes.
Lawyers seeking to prevent Obama’s registration records from being released again by the Selective Service System could conceivably argue that enforcement of federal law by a state or local agency is not a qualifying reason. Any possible legal ambiguity found in the 2000 rules appears to have been eliminated in the 2011 update, a preliminary analysis by Communities @WashingtonTimes.com has concluded.
Both the 2000 and 2011 versions of the Selective Service System’s privacy rules allow the FBI to request records when investigating possible violations of the Military Selective Service Act.
