Newly Released Documents Reveal Defense Department Intelligence Violations

EFF just received documents that reveal additional post-9/11 Defense Department misconduct, including attempts by the Army to investigate participants at a conference on Islamic law at the University of Texas Law School and Army-issued National Security Letters (NSLs) to telecommunications providers in violation of the law.

EFF received these documents in response to a 2009 Freedom of Information Act (FOIA) lawsuit that we filed against the DoD and a half-dozen other federal agencies involved in intelligence gathering. In the lawsuit, we demanded the immediate release of reports about potential and actual agency misconduct, and the agencies have since released thousands of heavily-redacted pages, some of which we have discussed here, here, here and here.

Now, thanks to a recent Supreme Court case, we have more. In March 2011, after the DoD released most of its records to EFF, the Supreme Court decided an important FOIA case called Milner v. Department of Navy, 131 S.Ct. 1259 (2011). The case involved one of the exemptions to FOIA, 5 U.S.C. SS552(b)(2), that allows agencies to withhold information "related solely to the internal personnel rules and practices of an agency." A 1981 case from the DC Circuit Court of Appeals interpreted this exemption broadly to cover "predominantly internal" materials whose disclosure would "significantly ris[k] circumvention of agency regulation or statutes," and since that time agencies, including and especially the DoD, have relied on this broad interpretation of (b)(2) to withhold a ton of important information. In March, the Supreme Court overturned this reading of the exemption and held (b)(2) is limited solely to records relating to employee relations and human resources issues.

The Milner decision is important for our case because the DoD and other agencies withheld a significant amount of information under the broader interpretation of (b)(2). As our case is still in litigation, the agencies are now required to release that previously-withheld information to us (or determine it can be exempted under another section of the FOIA).

The small amount of re-released documents we've received so far fills in some of the holes in the picture of the federal government's post-9/11 intelligence violations, just as it raises more questions. Here's what the records reveal, with the graphics comparing the first government disclosures with the newly released records (move the slider back and forth to see the different versions):

Army-Issued NSLs

In 2004, an Army Special Agent issued three NSLs (pdf) for customer phone records directly to a communications company. The NSL statute, 18 U.S.C. SS2709, only authorizes the FBI to issue NSLs, and specifically prohibits NSL recipients from telling anyone, including the customer, about the request. As the Army does not have the authority to issue NSLs, this Special Agent clearly violated the law. The Army did not discover the illegal requests until after the Agent received customer records from the communications company. Perhaps the most amazing thing about the story is that, according to the report,

neither the Army unit nor the FBI Field Offices [with which the Army agent was working] were aware that these requests had to be made by the FBI.

If we can't rely on our government employees to know and understand the law, how can we rely on them to apply it appropriately?

Investigation of University of Texas Conference Attendees

A 2004 Army intelligence violation report (pdf) noted that two Army lawyers attended a conference on Islamic law at the University of Texas Law School without disclosing their military affiliation. Some conference participants discovered who they were and challenged why they were there. The Army lawyers, believing that the conference participants had asked "inappropriate questions," decided to investigate them. Without any investigative authority or jurisdiction (the military's authority to investigate civilians in the United States is very limited), two Army Special Agents went to UT to ask about three conference attendees. The Army's internal investigation into the matter concluded that the Special Agents had,

improperly conducted investigative activity directed against three civilians within the U.S., who were outside Army counterintelligence investigative jurisdiction and failed to refer the matter to the FBI as they were required to do.

This report confirms once again that the US government has been improperly targeting Muslims in the United States. As we reported previously, records we received from the Department of Homeland Security (DHS) noted that in 2008, DHS's Office of Intelligence and Analysis improperly collected intelligence (pdf) about a non-violent Muslim conference in Georgia, including details about conference speakers who were Americans, and in 2007, DHS I&A improperly investigated (pdf) the U.S.-based religious organization the Nation of Islam. And just last week, Wired reported that the FBI "is teaching its counterterrorism agents that "main stream" [sic] American Muslims are likely to be terrorist sympathizers."

Joint FBI/DoD Surveillance Operations

Finally, several pages (pdf) refer to joint missions between the FBI and DoD, including a Joint FBI/National Criminal Investigations Service (NCIS) counterespionage operation in which an NCIS "asset" apparently went undercover into a US organization. This violates a DoD regulation that severely limits the ability of DoD employees to participate in US organizations' activities without disclosing "their affiliation with the intelligence component . . . to an appropriate official of the organization." Based on earlier releases, we already knew that several components of the DoD conducted surveillance on US organizations, including Planned Parenthood and anti-war groups, and we already knew the DoD worked together with the FBI on investigations, so it's unclear why the DoD felt it was so important originally to redact this information.

The release of these documents shows just how broadly the DoD was applying the (b)(2) FOIA exemption to prevent the public from knowing what went on in post-9/11 America. None of the information above should have been redacted under even the broadest, pre-Milner interpretation of (b)(2), and we can only assume these redactions are representative of how the DoD has applied other FOIA exemptions to its records as well. The DoD and other agencies should proactively release the rest of the records withheld under (b)(2). If they don't, we will address this along with other exemption issues as we move forward with litigation in our FOIA case this fall.

Related Issues: FOIA Litigation for Accountable Government, National Security Letters, Privacy, Transparency

Related Cases: FOIA: Intelligence Agencies' Misconduct Reports