By: Kevin Gosztola | The Dissenter –
Citizens for Responsibility and Ethics in Washington (CREW) has been pursuing a lawsuit against the FBI for records on the agency’s drone program. A recent filing in the case suggests the FBI has either lied to the public about the scope of its drone program or it has inaccurately defended the need to keep documents secret.
CREW, an organization that describes itself as being committed to “high-impact legal actions to target government officials who sacrifice common good to special interests,” filed a Freedom of Information Act (FOIA) request for records after then-FBI Director Robert Mueller revealed the FBI was operating a secret drone program in June 2013.
The request asked for records that would show: “the source or sources of all drones used by the FBI from January 1, 2009, to the present”; the “funding source for all drones used by the FBI from January 1, 2009, to the present”; “who provided the FBI with any training to enable the FBI to use drones”; “policy concerning the FBI’s use of drones for any purpose, including but not limited to the legal justification for such use and any memoranda of understanding between the FBI or [Justice Department] and any other government agency.”
According to CREW [PDF], the FBI responded to court orders and processed “6,720 non-duplicative pages of documents, releasing only 1,970—most of which contained extensive redactions—and withholding the rest.” The FBI cited four exemptions to justify keeping most of the records secret.
When Mueller spoke about the FBI’s drone program, he said it was used “in a very, very minimal way and very seldom.” The FBI, he claimed, had “very few” drones. They were apparently used sparingly for missions involving drugs, kidnappings, search and rescue operations and hunts for fugitives. However, the government now asserts that disclosing records on a domestic drone program will “enable hostile entities to assess United States intelligence gathering activities in or about a foreign country.”
The government and CREW are now seeking a decision from the judge on whether the records have been appropriately withheld under FOIA or not.
CREW argues in response to the government, “It is difficult, if not impossible, to understand how the FBI’s domestic drone program even intersects with foreign intelligence activities, sources, or methods of the United States, much less how information from the program about the source and funding of the drones, training for drone use, and drone policies could cause actual harm to those interests if disclosed.”
The Justice Department maintains [PDF] the FBI must keep the identity of the vendor, which has provided the FBI with drone technology, secret because “simply identifying the FBI’s equipment source or UAV items intended to be procured (or actually purchased) would reveal information regarding the FBI’s surveillance techniques and capabilities.”
Though the FBI argues that the disclosure of certain documents “would provide criminals and terrorists with a virtual ‘playbook’ on how to evade the FBI’s use” of drones, CREW contends that the FBI has not demonstrated that “operational capabilities and equipment specifications” are not already “generally known to the public.” Much information is already in the public domain. In fact, “manufacturers of drones,” such as General Atomics, “provide a large amount of information on their products’ capabilities.” And even the US Air Force has posted to its website details on the “operational capabilities of its drones.”
It is improper for the FBI to suggest that identities of vendors or drone suppliers are at all covered by the FOIA exemption protecting “law enforcement techniques.” Such a suggestion twists the exemption to make it possible for the FBI to keep all its dealing with corporations supplying drone technology secret so as not to face any public scrutiny at all.
Multiple times the FBI makes claims about foreign entities or foreign intelligence agents posing a threat if they obtain any of these records:
…Permitting specific details to be released on the [drone] program’s equipment, operational capabilities, limitations, training, and funding would enable criminals outside the controlled, classified environment to provide foreign entities and operatives with key information that could be used in countermeasure efforts…
… The withheld information is under control of the United States Government, and contains information regarding intelligence activities, sources or methods and/or foreign relations or foreign activities of the United States, all of which are authorized bases for classification [under Executive Order 13526]…
…Due to the delicate nature of international diplomacy, disclosure of this sensitive information could jeopardize the fragile relationships that exist between the United States and certain foreign governments. Moreover, the unauthorized disclosure of information concerning foreign relations or foreign activities of the United States can reasonably be expected to lead to curtailment in the diplomatic or law enforcement sharing of intelligence and/or new investigative equipment advancements…
All of which is intended to amplify fear in the mind of the judge hearing this case.
These statements also raise key questions about the FBI’s drone program and how confined it really is to the domestic United States. For example, how could records on policies or certain technology used to rescue kidnapped Americans in the US impact relationships with foreign countries? Or, how could a program used sparingly be so threatening to US diplomacy if basic details were shared with the public?
What the government refuses to accept is that CREW is only demanding the release of general information. It does not want specific records on specific technical operations. But the Justice Department seems to deliberately misconstrue the nature of CREW’s request for records in order to make the organization seem unreasonable.
CREW states, “The FBI has thrown a blanket of secrecy over a program that is of critical public importance and that raises fundamental questions about whether the government is abiding by the constitutional rights of its citizens. Yet despite these concerns, drone use domestically has increased exponentially, even though we do not yet have the appropriate controls and safeguards in place.”
The FBI is not the sole agency responsible for allowing this proliferation without regard for civil liberties. US Customs and Border Protection (CBP) has a flourishing drone program, which the Office of Inspector General (OIG) recently found [PDF] has achieved none of its “intended results” and has not properly accounted for all the costs of operations. CBP cannot account for whether it is protecting privacy (and the OIG did not bother to scrutinize this aspect of the agency’s program). And that is what makes lawsuits like CREW’s critical.
As CREW concludes, “The FBI’s response of withholding the vast majority of documents is not only unjustified legally and factually but is ‘anathema’ to the FOIA’s fundamental purpose of providing a vehicle for the public to know what its government is up to.”
A judge ruling in favor of the FBI would be a win for excessive secrecy and mean the government could operate a vast domestic drone program without telling citizens what drones are doing in the sky each and every day.