When the journalism community started National Sunshine Week in 2005 (March 10-16 this year), highlighting both the value and limitations of the Freedom of Information Act (FOIA) was a key objective. Enacted almost six decades ago, the FOIA has become an essential, if increasingly legally limited, tool for reporters, academics, public intellectuals, and individual citizens to try to uncover what the federal government is doing in secret in our name and with our tax dollars.
I actually filed my first FOIA request while still an employee of the Central Intelligence Agency (CIA), an action that at least, in part, triggered an internal counterintelligence investigation of me for alleged media contacts (at that point I’d had none). To this day, the CIA monitors my First Amendment-protected publishing activities. I know this because utilizing the FOIA’s companion component, the Privacy Act (PA), I discovered just how frequently the CIA declared my publication activities “noncompliant” with the CIA’s ludicrously broad pre-publication review regulations.
Contrary to CIA’s assertion, my piece was not based on classified information, but, in fact, a story in a major American newspaper. Indeed, through PA litigation against the agency, I’ve discovered several such baseless allegations of “noncompliance” even when the CIA was not the subject of a given piece I’d written. I’m sure I’ll get another “noncompliance” entry in my CIA file once this piece is published.
But my former employer is hardly the only federal agency or department engaged in monitoring the First Amendment protected activities of individuals or groups. Among the leading culprits is the Federal Bureau of Investigation (FBI).
Late last month and after a three-and-a-half-year wait, the FBI turned over a limited amount of material on the Democratic Socialists of America (DSA). It’s one of a number of politically active groups from across the political spectrum about which I’ve submitted FOIAs to the FBI. Given the FBI’s history of spying on socialist figures and groups since at least 1909, I was fairly certain they’d likely continued the practice. I was right.
Three days before a scheduled DSA anti-white supremacist protest at the University of Southern Mississippi, the FBI’s Jackson, Mississippi field office issued an FD-1057 “electronic communication” (EC) on the upcoming demonstration.
While claiming that the inclusion of information on DSA and other groups was “not intended to associate the protected activity with criminality or a threat to national security, or to infer that such protected activity itself violates federal law,” the Bureau went on to claim that based on “known intelligence and/or specific, historical observations, it is possible the protected activity could invite a violent reaction towards the subject individuals or groups, or the activity could be used as a means to target law enforcement. In the event no violent reaction occurs, FBI policy and federal law dictates that no further record be made of the protected activity.”
The point here is that at no time did the FBI have any information that any Jackson-area DSA member intended to engage in a violation of any federal law. The bureau opened a case file on a purely hypothetical threat of violence. The FBI should never have opened this file in the first place, and in my view it represents a direct violation of the First Amendment rights of those DSA members.
Indeed, over the last five years, I’ve documented multiple instances of such FBI rights violations, and in the DSA case noted above and the other ones I’ve written about, the FBI often heavily redacts what it releases under the claim that doing so “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.”
More often than not, what they’re really trying to hide is the extent, duration, and real reasons for having targeted a particular group in the first place. That practice should be expressly prohibited under a revised FOIA statute. All we need are some House and Senate members willing to take a break from the culture wars or naming post offices and devote some legislative time and energy to revitalizing FOIA so increased government transparency becomes a reality.
Former CIA analyst and ex-House senior policy advisor Patrick Eddington is a senior fellow at the Cato Institute.
