The FBI has put itself in a difficult spot. On the one hand, the Bureau has told the public that its domestic drone program is limited to “missions related to kidnappings, search and rescue operations, drug interdictions, and fugitive investigations.” On the other, it claims in FOIA proceedings that 4,750 pages of documents—about 70% of responsive records identified after a search—about its domestic drone program must remain entirely secret from the public in order to protect foreign intelligence activities, sources, and methods.
The discrepancy between the FBI's statements arises in a legal battle with government accountability group CREW regarding the latter’s June 2013 FOIA request seeking information about the FBI drone program. CREW’s request seeks basic information about FBI drone operations, including where the drones come from, sources of funding, training documentation, and policies and procedures pertaining to drone flights.
After giving CREW the run around, the FBI produced 1,970 partially redacted pages of documents, withholding 4,750 in their entirety. The FBI’s records chief David Hardy cited as justification for the exemptions statutes that allow officials to withhold documents from public inspection where those documents pertaining to intelligence sources and methods might be “kept secret in the interest of national defense or foreign policy.”
But as CREW points out in a motion filed January 5, 2015, Hardy “fails to explain how information about the FBI’s source and funding of [drones], [drone] training, and policies concerning [drone] use domestically would reveal anything whatsoever about foreign intelligence activities ‘in or about a foreign country’.” The FBI’s domestic drone use does not implicate “foreign activities of the United States,” CREW argues.
In FOIA litigation, the onus is on the government to prove that documents it says are exempt from disclosure cannot be released. The burden of proof rests with the state to identify precisely how each withholding falls under a limited number of exemptions to FOIA disclosure law. CREW's motion shows that the FBI’s exemption justifications fall far short of explaining why 4,750 pages of documents must be withheld from public consumption.
The exemptions the FBI cites don't even make sense.
As CREW attorneys write,
The FBI cannot have it both ways. Either it has lied to the public and Congress about the scope of its drone program as narrow and limited to domestic use, or [Hardy] has not testified truthfully about the impact disclosure of the requested information would have. Mr. Hardy’s statement, for example, that disclosing the requested information would “enable hostile entities to access United States intelligence gathering activities in or about a foreign country,” directly contradicts the FBI’s public assertions it uses drones for domestic law enforcement activities.
So which is it, FBI? Is your drone program narrowly limited to law enforcement functions, as you’ve told Congress and the public? Or is the drone program something different entirely?
Stay tuned to CREW’s lawsuit, and we will soon find out. And keep in mind that government secrecy too often functions not to protect national security, but to keep the public in the dark about things people wouldn’t like—if they only knew.