How Extensive Is FBI Domestic Spying?

Patrick G. Eddington for Cato Institute

How Extensive Is FBI Domestic Spying? 

We’re Trying To Find Out

Earlier today, Cato issued a press release based on the current results of a major and ongoing Freedom of Information Act (FOIA) project designed to try to determine the magnitude of FBI domestic surveillance activities that may be unconstitutional or otherwise questionable from a civil liberties standpoint. First, some background.

Since April 2019, I’ve filed over 400 FOIAs. One of the core questions my FOIA work seeks to answer is whether, and to what extent, the kinds of domestic surveillance abuses that were surfaced by the Church Committee (and later the Senate Foreign Relations Committee) have resumed—particularly the targeting of domestic groups on the basis of their constitutionally protected right to free speech and association. Based on the evidence I and others in the media and civil liberties community have accumulated to date, I believe the answer is yes. 

To refresh your memory, I wrote this piece for JustSecurity on Constitution Day 2019 regarding some very disturbing findings I and others had made regarding FBI targeting of domestic advocacy groups, including groups involved in immigration work. 

On November 26, I reviewed all of the FOIA responses I’ve received to date to ensure any additional actions that might be necessary on my part and not previously addressed were cataloged and scheduled. In the course of that review, I realized that one Department of Justice Office of Information Policy (DoJ/OIP) response I received in June 2019 regarding Cato contained “Glomar” exemption language. The third paragraph of the DoJ letter contains the key language and reads as follows:

"I have determined that the FBI properly refused to confirm or deny the existence of any national security or foreign intelligence records responsive to your request because the existence or nonexistence of any such responsive records is currently and properly classified. See 5 U.S.C. § 552(b)(1). Please be advised that the Department Review Committee will determine whether the existence or nonexistence of this category of records should continue to be considered a classified fact. Additionally, the existence or nonexistence of any such responsive records is protected under the FOIA pursuant to 5 U.S.C. § 552(b)(3). This provision concerns matters specifically exempted from release by a statute other than the FOIA (in this instance, 50 U.S.C. § 3024(i)(1), which pertains to the National Security Act of 1947 and the Central Intelligence Agency Act of 1949).”

So what exactly is a “Glomar” FOIA response and what does it mean? A little background follows.

FOIA exemptions and the Glomar Explorer case

Statutorily (at 5 U.S.C. § 552(b)), there are nine specific categories of exemptions under FOIA:

• Exemption 1: Information that is classified to protect national security.
• Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
• Exemption 3: Information that is prohibited from disclosure by another federal law.
• Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
• Exemption 5: Privileged communications within or between agencies, including those protected by the:
  1. Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
  2. Attorney-Work Product Privilege
  3. Attorney-Client Privilege
• Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
• Exemption 7: Information compiled for law enforcement purposes that:
  • 7(A). Could reasonably be expected to interfere with enforcement proceedings
  • 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
  • 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
  • 7(D). Could reasonably be expected to disclose the identity of a confidential source
  • 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law
  • 7(F). Could reasonably be expected to endanger the life or physical safety of any individual
• Exemption 8: Information that concerns the supervision of financial institutions.
• Exemption 9: Geological information on wells.
• 
  

However, one particular court case involving a FOIA on a deep-sea salvage vessel named the Glomar Explorer, allegedly hired by the CIA to retrieve a sunken Soviet sub, led to a now infamous court case (Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) in which the court sided with the CIA in its contention that simply confirming or denying the Agency’s connection with the Glomar Explorer was classified. The Agency argued that an answer either way would harm national security (and thus fell under the FOIA b(1) national security exemption, listed above). Hence the terms “Glomar exemption” or “Glomar response” in the FOIA context.

With respect to FOIA b(1) exemption Glomar invocations, federal courts have often sided with the Executive branch in the decades since the Phillippi decision (see for example Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982) and Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir. 2009)). It was not until 2010 that the CIA formally acknowledged its role in the Glomar Explorer episode, thus successfully using the court-created “Glomar” exemption to withhold relevant records for decades on that particular intelligence operation. 

I note, however, that in most of these court cases, the issue generally involved a foreign intelligence or foreign policy activity. Federal courts have been more willing to deny agency or department Glomar invocations in a law enforcement context (the FOIA b(7) series of exemptions), as was the case earlier this year when the Reporters Committee for Freedom of the Press won its case against the FBI over its invocation of Glomar to try to conceal its tactic of impersonating news crews as part of investigations. What has not been tested in court thus far (so far as I am aware) is whether the FBI or any other federal agency can employ a Glomar b(1) or b(3) FOIA response in connection with a domestic group or a media organization that may have been targeted for some level of data accumulation or surveillance.

Significance of the Glomar responses I’ve received to date

What makes the Glomar responses I’ve received thus far extremely concerning and noteworthy is 1) the sheer number and 2) the invocation of Glomar b(1)(i.e., national security/intelligence) and b(3) vice Glomar b(7)(i.e., law enforcement). 

As you can see from the Cato press release, the organizations run the gamut--some are clearly on the left side of the political spectrum, others from the conservative side, and of course the libertarian slice of the spectrum as well. The fact that I received Glomar responses on several media organizations or media trade/membership organizations, as well as a number of immigration-related groups—many involved in direct client services delivery—is alarming. Cato is, at this time, only publishing the names of organizations that have agreed to be so identified. The notification, coordination, and follow up process with other organizations is ongoing.

Does DoJ’s invocation of national security-related Glomars provide conclusive evidence that these organizations have been targeted for surveillance or informant/penetration operations? 

Some might argue that this apparent surge in Glomar responses simply represents a new FBI tactic to thwart FOIA requests. If that were the case, I would expect to be getting Glomar boiler plate response language in every FOIA response I receive on domestic organizations, which has not been the case. However, to more thoroughly explore that possibility, I’ve submitted over 100 additional FOIAs on a number of other organizations that I've designated a "control group" to help confirm or deny whether the Glomars I've received are likely concealing nefarious activity or are the initial wave of a change in DoJ policy to "Glomar everything" to make FOIA nearly useless. 

As I noted over the weekend, prior cases of Glomar being confirmed as having hidden real activity speak to the reason why getting to the bottom of this issue is so important:

More recently, CIA attempts to "Glomar" the ACLU over the existence of the agency's "Drone War" in Iraq and Afghanistan failed. And just last year, the Reporter's Committee for Freedom of the Press won its Glomar FOIA case against the FBI, which had argued that it properly invoked Glomar to avoid confirming or denying whether its agents sometimes impersonate journalists. In each of these national security or law enforcement cases, the "Glomar" invocation in question was used to cover a real activity undertaken by the agency or department in question.

My own view is that the the Glomar responses received to date may indicate that the FBI has been accumulating information on the organizations in question, possibly utilizing social media surveillance, commercial and government database searches, and physical surveillance measures (either by FBI personnel or informants recruited for the purpose) for what the FBI terms “assessments”—a form of preliminary but often expansive information gathering operation that may, or may not, lead to a preliminary or full field investigation, and thus more aggressive surveillance and related activities down the road. 

I strongly suspect that if such “assessments” are underway, they very likely violate the 1^st and 4^th Amendment rights of the targets. That is certainly the case with regards to Antiwar.com, which has been in litigation for years regarding confirmed FBI monitoring/surveillance of their website and activities. 

If any of the organizations for which I've received Glomar responses were current or potential targets of a criminal investigation, I likely would have received a FOIA response containing the following language, which is drawn from the FBI FOIA response I got on an encrypted messaging app provider (which I will not identify at this time, as the FOIA appeal process is ongoing):

“The FBI has completed its search for records responsive to your request. The material you requested is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552(b)(7)(A). 5 U.S.C. § 552(b)(7)(A) exempts from disclosure:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to interfere with enforcement proceedings...

“The records responsive to your request are law enforcement records; there is a pending or prospective law enforcement proceeding relevant to these responsive records, and release of the information could reasonably be expected to interfere with enforcement proceedings. Therefore, your request is being administratively closed.”

To date, I have received no such FOIA response on any domestic advocacy group or media organization, though many of my FOIAs are in various stages of initial response or appeal. Accordingly, this assessment is subject to change.

One final note. One FOIA response I received on a domestic advocacy organization was not a Glomar and did, in fact, reveal FBI monitoring of the organization and/or individuals associated with it. In that case, the surveillance took place during the Bush 43 administration. However, that response was heavily redacted and clearly only a partial response to my request. That particular FOIA remains on appeal with the Department of Justice and will likely be the subject of litigation in the near future.