Privacy SOS

Judge: FBI must explain why it is withholding documents about assassination plot against occupy activists

Thanks to FOIA ninja Ryan Shapiro, we might soon learn more about the FBI’s suppression of information related to an alleged assassination plot against occupy activists.

Remember the weird—and embarrassingly underreported—story about how the FBI knew of an assassination plot against occupy “leaders”, but never informed the targets? We learned about the existence of the plot not because the FBI quickly informed the activists that someone wanted to kill them. Instead, the information was divulged to the public when the advocacy organization Partnership for Civil Justice published hundreds of pages of FBI files about the bureau’s monitoring of Occupy Wall Street related movements nationwide. There are two opaque references to the assassination plot in the 112 pages of heavily redacted documents released to the group. Here’s the first reference:

An identified [redacted] of October planned to engage in sniper attacks against protesters in Houston, Texas, if deemed necessary. An identified [redacted] had received intelligence that indicated the protesters in New York and Seattle planned similar protests in Houston, Dallas, San Antonio, and Austin, Texas. [Redacted] planned to gather intelligence against the leaders of the protest groups and obtain photographs, then formulate a plan to kill the leadership via suppressed sniper rifles.

A few pages later in the documents, we get this sentence, completely divorced from the context (i.e. the plotter, whose name is redacted): “[REDACTED] interested in developing a long-term plan to kill local Occupy leaders via sniper fire."

After these documents were disclosed to the public, MIT graduate student and FOIA expert Ryan Shapiro filed a request to the FBI to learn more about this plot. The FBI said it only found 17 pages of responsive documents, and gave Shapiro five partially redacted pages. Shapiro then filed suit, alleging, as Courthouse News reports, “the FBI had violated the FOIA by failing to adequately search for, and produce, records responsive to his requests, and had improperly invoked FOIA exemptions.”

Among the exemptions to FOIA law the FBI cited was the notoriously loosely defined "law enforcement exemption," which is usually understood to mean that an agency can withhold records if they are part of an ongoing investigation.

Courthouse News reports that a judge has ruled the invocation of the exemption wasn't legit, and that the FBI needs to explain itself:

U.S. District Judge Rosemary Collyer found the FBI had properly withheld some records, but she was unconvinced by the agency's explanation for its use of Exemption 7, which protects from disclosure "records or information compiled for law enforcement purposes."
     
Collyer wrote: "(Shapiro) argues that FBI has not established that it actually conducted an investigation into criminal acts, specified the particular individual or incident that was the object of its investigation, adequately described the documents it is withholding under Exemption 7, or sufficiently connected the withheld documents to a specific statute that permits FBI to collect information and investigate crimes.
     
"Mr. Shapiro further alleges that FBI has failed to state a rational basis for its investigation or connection to the withheld documents, which he describes as overly-generalized and not particular. On the latter point, the Court agrees."
     
Judge Collyer added: "FBI will be directed to explain its basis for withholding information pursuant to Exemption 7. To the extent that FBI believes it cannot be more specific without revealing the very information it wishes to protect, it may request an in camera review of the documents."

In other words, the FBI claims that it only possesses 17 pages of documents about this alleged assassination plot against occupy activists, but simultaneously claims that it cannot hand over 12 of those documents to a journalist because the documents were compiled for "law enforcement purposes," which typically means they are part of an ongoing investigation. But if the FBI only has 17 pages of documents about this plot, how can it claim that it is engaged in an active law enforcement investigation about it? The FBI is famous for compiling massive troves of information during investigations. Twelve out of seventeen pages an investigation does not make.

Too often, the federal government withholds information from the public because it is embarrassing, not because it should be legitimately secret. Given the FBI’s history with respect to the assassination of dissident political activists, this silence is troubling.

I’m very eager to see where this case goes. No matter what happens in court, the bureau should at least be pressed to publicly explain why it kept confidential information that could have led to the targeted killings of economic justice activists, instead of warning the groups allegedly targeted. One assumes they would give that courtesy to Wall Street bankers, if they were targets of such a plot.

© 2021 ACLU of Massachusetts.