Friday, November 22, 2013

135.7 - Outrage of the Week: using the FOIA is a threat to national security

Outrage of the Week: using the FOIA is a threat to national security

Ryan Shapiro is a 37-year-old PhD student at MIT who became interested in learning how and why the FBI came to view animal rights activists as the nation's "number one domestic terrorism threat." He has made it the topic of his dissertation.

He ran into a wall in his research when he first began using Freedom of Information Act, or FOIA, requests to get significant numbers of documents from the bureau. To agree to supply the documents, the FBI demanded he provide case numbers, file names, and names of field offices where investigations originated, information clearly hard to come by if you don't already have it. Even when he had the information, the agency often claimed the relevant documents didn't exist.

So he began researching the FOIA itself and discovered something: privacy waivers. Quoting an article about him in Mother Jones magazine,
Suppose you and I volunteered for the animal rights group PETA. If Shapiro requested all PETA-related FBI documents, he might get something back, but any references to us would be blacked out. If he requested documents related to us, he'd probably get nothing at all. But if he filed his PETA request along with privacy waivers signed by us, the FBI would be compelled to return all PETA documents that mention us - with the relevant details uncensored.
Because he himself had been active in the animal rights movement, Shapiro knew a number of people still involved. So he contacted them and got the waivers. The first few requests using the waivers got back hundreds of pages of documents, including ones the FBI had previously said didn't exist. Using those, he determined who else to ask for waivers. It was a novel and entirely legal strategy and the project grew.

Until, that is, 2010, when the FBI simply stopped responding to his filings. So in 2012, Shapiro sued the FBI, demanding it comply with the law.

Here's where the outrage comes in.

The Justice Department responded to his suit by asking the court for what's known as an Open America stay, a delaying tactic under which agencies get extended time to reply to requests for documents. Normally, they have 20 days to say if they will comply with a given request, but under what are supposed to be "exceptional circumstances," such as when an agency is swamped with requests, it can convince a court to grant it extra time.

How much time? In Shapiro's case, the feds want seven years to determine if the documents can be released, because, they claim, release could “irreparably damage national security” by creating a "mosaic" of information that would have "significant deleterious effects" on the bureau's "efforts to investigate and combat domestic terrorism."

So-called "mosaic theory," based on the idea that a group of facts can reveal more than the facts individually - that is, the whole is more than the sum of the parts - has been used before to block the release of specific documents, but never on this scale. The FBI is arguing, in effect, that Shapiro's PhD dissertation is a threat to national security.

What's more, the FBI claims it can't even discuss the case in open court "without damaging the very national security law enforcement interests it is seeking to protect." Instead, it has filed a secret declaration outlining its case, with only a heavily redacted version available to Shapiro or his attorney, which means they have to try to pursue their case without really knowing just what the government is arguing.

A ruling in the government's favor could potentially cripple the FOIA and make it far more difficult for journalists and academics and ordinary citizens to know what government agencies are up to. In the words of Baher Azmy, legal director for the Center for Constitutional Rights, "Under the FBI's theory, the greater the public demand for documents, the greater need for secrecy."

It's just another intensification of demands for secrecy and control from what came into office promising to be the most transparent administration ever.

As Shapiro said, "I wish I could say I’m surprised. But I can’t." Neither can I. But I can still call it an outrage.

A ruling is expected in the case within the next few months.


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