The FBI Says It Can't Disclose Its Records Because Then the Public Would Know How the Bureau Works

This piece originally appeared at Privacy SOS.

Granting the ACLU and the public access to staffing, budgetary, and statistical information about the Boston Joint Terrorism Task Force and FBI would mean “the public would know where the FBI was putting its resources,” warned an assistant U.S. attorney in oral argument in a Boston federal court last week. The government apparently doesn’t want the public to know anything about how the FBI and JTTF spend public money, staff their offices, or conduct investigations.

Heaven forbid the public “know where the FBI [puts] its resources.”

In December 2013, the ACLU of Massachusetts sent a FOIA request to the FBI, which sought basic information about the structure and operations of the Boston JTTF and the Boston FBI field office. Amid the information the FBI redacted from its responsive disclosures were all budget figures, the number of FBI and state and local officials tasked to work on the Boston Joint Terrorism Task Force, and the number of assessments, preliminary investigations, and full investigations the Boston FBI conducted over two years ago. (It’s odd that the government is resisting disclosure of these records, given that in 2011, it gave Charlie Savage of the The New York Times similar information.)

According to the government, this information is exempt from public disclosure under the Freedom of Information Act pursuant to Exemption 7e, the part of the federal statute that says agencies do not have to disclose records that would reveal law enforcement “techniques” or “procedures.” But as ACLU of Massachusetts staff attorney Jessie Rossman argues, staffing, budgetary, and statistical information about caseloads do not reveal techniques or procedures.

The stakes for the public are high. If the court agrees with the government’s reasoning and denies the public access to this information, it would put the federal judiciary’s stamp of approval on what attorney Rossman rightfully argues the FBI is seeking in this case: “a categorical [FOIA] exemption for all law enforcement information.”

If agents are routinely chasing down leads that go nowhere, those agents are wasting their time spying on ordinary people on the public’s dime.

As Rossman said last week during oral argument, that’s not what Congress intended when it wrote the Freedom of Information Act. If lawmakers intended to bar the public from accessing all law enforcement records, they would have written that into the FOIA statute — which they didn’t.

At issue in the ongoing litigation over FBI redactions is whether the public can hold law enforcement agencies accountable for how they spend our money and act in our names. If we don’t know anything about how law enforcement agencies operate, we can’t hold them accountable. Unaccountable law enforcement is not only bad for freedom; it also harms public safety. As history demonstrates, when the FBI is allowed to conduct its business in the dark, precious government resources are inevitably dedicated to spying on people who threaten the status quo, but who do not threaten their fellow Americans.

While antidemocratic in the extreme, it’s easy to understand why the FBI wants to keep budget, staffing, and investigations statistics secret from the public.

When the public learned about the FBI’s illegal and antidemocratic COINTELPRO operations in the 1970s, the attorney general imposed rules forbidding the FBI from spying on people unless agents could show the targets were likely violating the law. After 9/11, those rules were scrapped. The new guidelines allow FBI agents to open investigations (called “assessments”) against people absent any suspicion of wrongdoing. Since the 9/11 attacks the bureau has been free to spy on people it doesn’t suspect of criminal activity, supposedly because suspicionless investigations are required during the permanent “war on terror.”

The ACLU is litigating for this information because we want to know what results from the FBI’s suspicionless investigations, known as assessments. If it’s true, as we suspect, that there are thousands of FBI assessments but comparatively few preliminary or full investigations — let alone arrests or successful prosecutions — it confirms what we and other civil libertarians have been saying for over a decade. Namely, allowing the FBI to spy on people absent criminal predicates isn’t just bad for civil liberties; it’s bad law enforcement. If agents are routinely chasing down leads that go nowhere, those agents are wasting their time spying on ordinary people on the public’s dime.

The FBI refuses to give us this information, which is part of the reason we sued. In essence, the government argues the information must remain secret because if disclosed, it will tip off terrorists to ... the fact that the government wants to investigate crimes.

But hiding from the public records revealing how many assessments, preliminary investigations, and full investigations the Boston FBI office has conducted doesn’t protect public safety. Instead, it obstructs precisely the kind of public accountability that would make the FBI better at protecting the public from people who mean us harm.

The case of Tamerlan Tsarnaev illustrates the point.

The FBI investigated Tamerlan back in 2011, less than two years before he blew up the Boston Marathon, killing three people and injuring hundreds. When the FBI discovered photos of Tamerlan and his brother at the marathon, they knew they had their suspects. But according to the bureau, officials at the Boston office couldn’t put names to their faces — despite the fact that JTTF officials in Boston had interviewed Tamerlan on numerous occasions as part of its terrorism investigation against him.

Though the FBI says it first found the brothers in surveillance images on the Wednesday after the attacks, officials say they only positively identified the Tsarnaevs on early Friday morning when they fingerprinted Tamerlan’s dead body. Lots of chaos occurred in the intervening two days: The brothers allegedly killed police officer Sean Collier, carjacked a man, and engaged in a firefight where they threw bombs on the streets of suburban Watertown, Massachusetts.

As the former Watertown police chief said, reflecting on that harrowing week, if the FBI had put the brothers’ names to their faces back on Wednesday, officials could have arrested them before they went on their dangerous killing spree, saving the Boston area one billion dollars in lost revenue, as the city was put under what resembled martial law, and saving Sean Collier his life.

But for some reason, despite having investigated the elder Tsarnaev for terrorism less than two years before the attacks, no one at the Boston FBI office recognized him. Could that be because the FBI is wasting its time — and muddying up its internal operations — spying on people who just happen to be Muslim, Black, or a dissident? People FBI agents can’t find any evidence to show are engaged in serious crimes — because they aren’t?

Access to records revealing how many assessments, preliminary investigations, and full investigations the FBI conducts would help the public understand whether the FBI is tying its own shoes together by allowing its agents to conduct suspicionless investigations. It would help us answer this troubling question: Does the FBI really conduct so many investigations that its agents couldn’t remember Tamerlan, a person its agents met with repeatedly and investigated on suspicion of involvement terrorism less than two years before the attacks?

Taxpayers deserve to know. And contrary to the DOJ’s absurd and dangerous claims in federal court, disclosing how many assessments, preliminary investigations, and full investigations the FBI conducted many years ago would not tip terrorists off to FBI “techniques” or “procedures,” nor endanger the public. As the Tsarnaev case illustrates, the opposite is true.

Only when law enforcement agencies are subject to rigorous transparency can the public hold them accountable for their actions, thereby making them more effective at protecting public safety.

The FBI has a long and dirty history of spying on dissidents and activists, instead of investigating and building cases against people who do real harm to Americans, like the bankers who collapsed the U.S. and world economy in 2008. So it’s easy to see why the government doesn’t want the public to learn any meaningful information about the inner workings of the bureau. But government agencies can’t keep information secret from the public because it would reveal something embarrassing or unconstitutional. And the records at issue don’t reveal “techniques” or “procedures.”

Here’s to hoping the federal court agrees and compels the FBI to release this basic information about how it spends our money and acts in our names. Only then will we have any meaningful access to judge how the bureau is conducting itself, and so the opportunity to exert some democratic accountability over its operations.

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Anonymous

The public wouldn't be thrilled with the FBI wasting its time watching evangelical protestants and the Daughters of the Confederacy while ignoring the Muslim Brotherhood infiltrating the White House. We might not understand... or we might understand perfectly which is why they don't want us to know.

R.

This has obvious parallels with the illegal surveillance being conducted by government agencies. The longer the public is kept ignorant of the government's erosion of their basic rights, the longer the government can get away with continuing the illegal acts and rebuff court cases by arguing that the public can't prove the illegal acts or get standing in court to pursue a case. It's the classic catch-22 and the government intends to continue their abuse until a court stops them.

Anonymous

It's OUR bureau!!! Who's going to keep them honest! If not the public, then who???

You guessed it

After 16 years of unwarranted surveillance, I can tell you the DOJ / FBI / DEA will say anything, do anything, use any body to further their agenda. Through the Freedom of Information Act and Privacy Act , four court actions, and a reluctant Judge James Boasberg, a FAA employee that blurted out the FBI name in court, the agency name being withheld, it's actually a game of how many lies the DOJ will tell and how many you can disprove. Judge Boasberg uses the phrase "magic words" to what I call "creative disinformation and misleading 7E application". Because the FBI / DEA kept using the 7A and asserting "On Going National Security Investigation", yet dropping it at the last moment for "classified techniques and procedures" 7E, only public congressional hearing on what's been going on since "COINTELPRO" will pierce the "veil" of misconduct and secrecy ! Elkins v FAA, 1:14-CV-00476

Anonymous

As with police corruption, subordinates follow orders from superiors so the focus needs to be correcting the top management of any federal agency including the FBI.

As with police agencies, the subordinate rank & file officials are also caught in a Catch-22 situation: if they refuse illegal or unconstitutional orders from superiors they are punished by top management but if they follow those illegal orders they be sued by citizen-plaintiffs on the receiving end.

Anonymous

I am not a fan of the entire FBI but I agree that the infiltrators in our society who "pretend to be peaceful activists or to defend our civil liberties" and work for foreign enemy government should definitely not know how our genuine law enforcements agents who are trying to protect us from such spy or terrorist elements work. Excuse me for my candor, but I have discovered in the last couple of years that many activist groups or organizations who are affiliated with peace and Israel work for its tyrannical anti-civil liberties, anti-human rights occupying monstrous, and obviously anti-America and anti-democracy government and regime and they are quite a large criminal bunch! Unfortuntely, your ACLU does not defend our American civil rights and human rights from their Israeli violations, right here in our AMERICAN land and in NYC. I have been a member of ACLU for a decade and If you don't start targeting foreign enemies and defending us against THEIR, NOT JUST THE GOVT, most basic civil rights abuses as soon as possible, your 99 percent Jewish members leadership and spokespeople are complicit in these crimes against us by Israel (israshit) and are fully aware of the crimes and their criminals I am talking about that you are ardently defending because the FBI IS DEFENDING US FROM them. These peace protesters and activists you are defending are implanting our children, our students, and our family members with Jose Delgado brain computer interface implants that renders them braindead and gives control of their brain to the Israeli criminal hackercyberterrorists and turns them into Connecticut school terrorists murderers teenagers or into a range of robotic A to Z scenario weapons against their parents, against their communities, and against their country and robs them of their most important civil rights: THEIR FREE WILL, THEIR MIND, THEIR SPIRIT, AND THEIR HEART. THEY BECOME OBJECTS, ROBOTS, ACTING IN ACCORDANCE TO ISRAELI ORDERS AT THE PRESS OF A BUTTON THAT TRAVELS THROUGH RADIOWAVES TO THEIR MOTOR CORTEX, WHERE THE CRIME AGAINST THE GENEVA CONVENTION BRAIN IMPLANT WAS SECRETELY AND WITHOUT THEIR KNOWLEDGE OR CONSENT IMPLANTED WHILE THEY SLEPT IN THEIR DORM OR ELSEWHERE.
Now you have been informed and do not dare to delete my post. I pay my dues and I insist on my freedom of speech, even if you do not believe in it nor fight for it.

Anonymous

Thank you for your efforts to make it possible for Americans to gain access to these records! An informed population is the only way we will be able to wager our campaigns for freedom of living! Til then, these great conglomerates throughout society seem to be causing so much damage to our goal of freedom for the ordinary people in our population! I appreciate the Internet of Information for the sake of our populations throughout the world!!! So many people can gain the knowledge we need to wage our campaigns for our future generations!

Anonymous

The DOJ signed the "common rule" for protection of human subjects in experiments in 2005 but, did not sign in 2017 ,

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