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.