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Fresh evidence uncovered through Freedom of Information Act (FOIA) requests made by a Cato Institute scholar reveals the need for Congress to launch an aggressive investigation into FBI domestic surveillance practices.
Patrick Eddington, a research fellow at Cato, has filed numerous FOIA requests with the Department of Justice (DOJ) since April of last year. In more than 20 cases, the DOJ refused to confirm or deny whether the FBI is collecting national security or intelligence records on specific domestic organizations, including media outlets, immigration policy groups, and organizations dedicated to upholding the Bill of Rights.
“This type of response raises the troubling possibility that certain domestic public policy and advocacy groups may have been targeted for unconstitutional surveillance or information gathering by federal authorities,” said Eddington.
The Cato Institute is among the 23 organizations that may have been targeted for surveillance or other data collection. Others include Kids in Need of Defense, the Transgender Law Center, the Reason Foundation, the Campaign for Liberty, and Restore the Fourth.
“Had we received such responses for every FOIA request submitted on a domestic organization, we might assume that DOJ was trying to narrow the scope of the FOIA or to frustrate broadly the spirit of the law,” said Eddington. “To date, however, the responses have been selective.”
Federal law enforcement and intelligence agencies have used the “neither confirm nor deny” response — known as a “Glomar” — in the past to conceal surveillance, intelligence gathering, or even combat activities. Courts have generally supported agency use of such responses when the issues involve a foreign intelligence or foreign policy activity.
Federal courts have been less willing to support Glomar invocations in a domestic law enforcement context. Last year, the Reporters Committee for Freedom of the Press won its case against the FBI for its use of Glomar to try to conceal its tactic of impersonating news crews to gather information.
“Courts have yet to define the extent to which the FBI or any other federal agency can refuse to confirm or deny surveillance or data accumulation activities in connection with a domestic group or a media organization,” said Eddington. “But regardless, no federal agency should be collecting data on any domestic groups on the basis of constitutionally protected activities.”
Eddington is sharing the FOIA responses he received with the organizations in question. As this domestic surveillance mapping project continues, additional results will be reported when available.
“A Glomar response is particularly offensive to the spirit of FOIA, as it asserts a privilege of secrecy not only covering the substance of a federal agency’s activities, but even the fact of those activities,” said Eddington. “In light of other recent revelations about federal surveillance activities targeting various domestic groups, the need for aggressive congressional investigation of these matters is more urgent than ever.”