The Freedom of Information Act: The Most Powerful Tool in My Reporting Arsenal March 18, 2013
By Jason Leopold
Jason Leopold is Truthout’s lead investigative reporter. Freedom of the Press Foundation is crowd-funding in support of his FOIA work and on-the-scenes reporting at the Guantanamo Bay trials. You can fund his work here.
A couple of years ago, a friend handed me about 500 pages of documents he obtained through a Freedom of Information Act (FOIA) request from an educational division of the Air Force that contained some explosive revelations about what our young nuclear missile officers are taught about the ethics and morals of launching nuclear weapons.
Buried within these documents were 43 PowerPoint slides that contained disturbing passages from the Bible that aimed to show nuclear missile officers in training that Jesus Christ would have supported the launching of nuclear weapons. Moreover, the PowerPoint slides quoted Werner Von Braun, regarded as the father of the US space program, as a moral authority on using nuclear weapons to annihilate enemies. Braun was a former member of the Nazi Party who used Jews imprisoned in concentration camps, captured French anti-Nazi partisans and civilians, and others to help build the V-2 rocket for Hitler's Third Reich.
The use of religious imagery in the slides and the Biblical citations appeared to be a violation of the First Amendment establishing a wall of separation between church and state and Clause 3, Article 6 of the Constitution, which specifically prohibits a "religious test."
So I wrote up a report. About a day or so after my story was published the Air Force canceled the ethics training, which had been in place for more than two decades. In fact, the Air Force pulled all of its training materials "that address morals, ethics, core values and related character development issues" pending a "comprehensive review."
A month later, Air Force Chief of Staff Gen. Norton A. Schwartz issued a rare policy memorandum to Air Force leadership on “religious neutrality,” advising “leaders at all levels” that they must "must balance Constitutional protections for an individual's free exercise of religion or other personal beliefs and its prohibition against governmental establishment of religion."
By the time attention surrounding the story, which also included a Republican member of Congress weighing in on the controversy, died down it had gone global and was picked up by more than 100 domestic and international news outlets.
I was stunned, to say the least, that the documents I obtained and used as primary source material in the “Jesus Love Nukes” report would elicit a swift response from the Air Force, Congress and the media.
I referred to this story because it is the catalyst behind my aggressive use of FOIA over the past two years.
Naturally, I was eager to continue this style of reporting and had hoped that I could use FOIA to pry loose documents and reveal government secrets on matters pertaining to civil liberties, human rights, national security and counterterrorism, subjects that I have reported extensively on over the past decade.
While I had filed a few dozen FOIA requests in the past, I did not have much success obtaining responsive records due to the classified nature of the materials I sought and the fact that I was not very well educated on how to file appeals to the denials I had received. I also enjoyed access to anonymous sources I cultivated who disclosed information to me on these matters and I felt that a FOIA request was unnecessary as well as burdensome.
But, the “Jesus Loves Nukes” story taught me that there’s a huge difference between quoting an anonymous source and publishing the contents of a smoking gun document. For one, a report based on the latter helps build public trust and is bound to attract the attention of other journalists and a wider audience whereas the use of anonymous sources can sometimes result in a story being completely ignored by the media because it can be difficult to confirm the claims leveled by anonymous sources.
Immediately after the publication of the “Jesus Loves Nukes” story I asked my friend who turned over the Air Force documents to me and is a “frequent FOIA requester” to give me a crash course on writing good FOIA requests and I went to town, filing dozens of requests for a wide-range of documents with numerous government agencies. I have since learned that a strong FOIA request can make a difference between receiving responsive records and a flat-out denial.
The timing of my FOIA lesson turned out to be perfect. The anonymous sources I had come to rely upon weren’t speaking out anymore largely because of the Obama administration’s war on whistleblowers and leaks to the media as well as its determination to punish suspected leakers by prosecuting them under the Espionage Act.
My sources' fears were justified. Last week, I obtained through a FOIA request a copy of a memo signed by Director of National Intelligence James Clapper last July during the height of the anti-leak furor in which he outlined steps the intelligence community was ordered to take to deter “unauthorized disclosures” of classified information to the media.
In February 2011, a month after I broke the “Jesus Loves Nukes” report, I published an exclusive story about former Guantanamo prisoner, David Hicks, an Australian who was imprisoned at the detention facility for five years and alleged he was brutally tortured. Hicks had not granted any interviews since he was released from Guantanamo. I was the first journalist he agreed to speak with.
But I needed to try and confirm some aspects of Hicks’ story with other people who were present at Guantanamo when he was. So I sought out former guards. A half-dozen weren’t willing to speak with me, saying they were forced to sign a non-disclosure agreement that prohibited them from discussing anything about what they witnessed or experienced while serving at Guantanamo. The guards said they feared they would lose their security clearance and be vulnerable to prosecution if they spoke out publicly. Fortunately, however, I found two guards who were willing to take the risk: Brandon Neely, who had actually escorted Hicks off the bus in January 2002, a week or so after Guantanamo opened, and Albert Melise, a guard who befriended Hicks at Camp Echo where Hicks was held in isolation.
Melise had never spoken publicly before. He described his job duties at the prison and said he was tortured by his experience serving as a Guantanamo guard. A few weeks after my story on Hicks was published, Melise, an Army reservist, was accused of leaking classified information to me and was barred from reenlistment. Melise’s story served as confirmation to other Guantanamo guards that they should remain silent and their responses underscores why I relied heavily on FOIA to continue my investigative work on the treatment of prisoners at Guantanamo and other pressing issues.
But I never thought that filing a FOIA request would result in a government agency launching an investigation of sorts to find out exactly what I was looking into and why. Yet, that’s what happened in the summer of 2011.
I received a phone call from a woman who said an FBI special agent was at her house and was interrogating her husband about a FOIA request I had filed in March 2011 in which I had sought his case file from the FBI. This was no ordinary citizen whose file I was trying to pry loose. It was Hesham Abu Zubaydah, the younger brother of the Guantanamo prisoner known as Abu Zubaydah, the first high-value detainee captured after 9/11 and the first “war on terror” suspect subjected to the drowning technique known as waterboarding while detained at a CIA black site prison.
Unbeknownst to the media, Hesham had been living in the United States since 1998. I was working on a profile about his brother when I discovered that Hesham was in the US. I had hoped Hesham would be able to shed some light on his brother’s alleged terrorist activities but I determined after speaking with him he had his own important story to tell, which included spying on mosques in Portland, Oregon at the behest of the FBI. Hesham had signed a Privacy Act waiver authorizing the FBI to turn over all of his files to me.
Perhaps the fact that I intended to reveal FBI secrets is what led the agency to send Special Agent Bill Tidwell to Hesham’s house in August 2011 to find out, allegedly, whether I had bribed and/or coerced Hesham into signing the waiver and if Hesham would consider dropping his FOIA request if the FBI helped him obtain a green card.
Furious, I phoned the FBI to find out why the agency was interfering with my work. A spokeswoman told me the visit Tidwell made to Hesham was not at all unusual. However, she refused to disclose how often the FBI sent agents to the homes of individuals who received written permission from third parties to obtain their case files. So I filed a FOIA request with the FBI requesting the information. The FBI refused to disclose it so I sued. The case is still pending.
Furthermore, since Tidwell used my name during his meeting with Hesham in August 2011 I filed a FOIA request with the FBI requesting all documents that mentioned me, Jason Leopold, and referred to the day in question. Eight months later, I received three redacted pages. Sure enough, there was my name, in the FBI agent’s report. I must admit, seeing my name in the documents was chilling.
I later learned from an FBI analyst that the agency’s FOIA office had referred to me as a “FOIA Terrorist” due to the number of records requests I had filed in Hesham’s case and on other subjects as well as my requests for FBI “processing notes,” which are internal documents that provides insight into how a FOIA request is handled.
The FBI stonewalled on turning over Hesham’s case file to me but they did not derail my story, despite their best attempts to do so. Last May, after 14-months of investigative work, I published a 15,000-word investigative report on Hesham’s plight that says everything you need to know about post-9/11 America. I relied heavily on FOIA to tell his story and obtained more than 1,500 pages of documents from other government agencies. I filed a FOIA lawsuit against the FBI in the Eastern District of California late last year for failing to turn over Hesham’s case file. His story will not be fully told until I obtain those documents.
The FOIA work pertaining to Hesham’s case also led to a lawsuit I filed against the FBI, Department of Defense (DoD), National Archives and Records Administration (NARA) that resulted in a significant victory that now benefits all FOIA requesters. Because the FBI had been dragging its feet in turning over documents it held on Hesham, I was advised by Kel McClanahan, the executive director of National Security Counselors and Truthout’s FOIA attorney, to request from the FBI’s FOIA office an estimated date of completion of my FOIA. McClanahan told me by law all government agencies are required to provide requesters with estimated dates of completion when asked.
But the FBI refused to do so even though I had cited the relevant part of the law to the FBI’s FOIA public information officer I was communicating with several times during a somewhat hostile email exchange. McClanahan said the FBI wasn’t the only government agency violating this provision of FOIA and he suggested we sue the FBI, DoD and NARA to force them to comply. Last June, in response to my lawsuit and nearly four years after changes to FOIA went into effect, these agencies issued policy directives advising their analysts to provide requesters with estimated dates of completion when asked.
Although various government agencies continue to stonewall my attempts to liberate classified documents through FOIA, , there have also been other FOIA victories worth highlighting.
Last summer, the Defense Department’s Inspector General turned over a highly classified report that contained minimal redactions to my colleague, Jeffrey Kaye, and me that for the first time revealed how Guantanamo prisoners had been forcibly drugged, at times with mind-altering substances, and had been subjected to so-called “chemical restraints” when they misbehaved. Physicians for Human Rights noted that the report Kaye and I obtained through our FOIA work “contains the first explicit admission by the US government that these types of drugs were used on detainees against their will.”
I also obtained from the Department of the Army, as a result of another FOIA request, two autopsy reports related to the 2011 deaths of two Afghan Guantanamo prisoners, one of who reportedly committed suicide. The autopsy reports, which were secret and turned over to me last week, raise further questions about the prisoners’ treatment.
My FOIA work on Guantanamo continues with a request for records filed with the FBI, CIA, DoD, State Department and other agencies for all records pertaining to the treatment of “war on terror” prisoners in custody of the US government. I’m also involved in four other FOIA lawsuits, another of which is against the FBI over the agency’s refusal to turn over all of their documents on the Occupy Wall Street protest. Furthermore, I still have about 150 outstanding FOIA requests that will keep me busy for the next decade.
While reporting that attempts to shine a light on malfeasance at the highest levels of government may no longer generate the same number of page views or stoke the same amount of outrage from the public as we saw during George W. Bush’s presidency, I believe it’s still important to create a public record to document these government secrets if for no other reason than no one else will.
But there are limitations to FOIA, as historian and frequent FOIA requester Trevor Griffey reminded me recently.
“The FOIA process, while remaining important to reporters, at the same time still is highly limited, because it exposes how secretive our government is more often than it reveals what our government is actually doing,” Griffey told me. “The redaction/ excision process protects from disclosure those things which most need to be made public.”
An Associated Press report published this week underscores Griffey’s point. An analysis by AP found the Obama administration has cited national security to justify its censoring of government records more often than any other time since Obama was sworn into office in 2009 and signed an executive order promising to usher in a new era of open government and transparency.
The AP report means my job will become harder.
I’d love nothing more than to have whistleblowers like Daniel Ellsberg or Pfc. Bradley Manning turn over classified material to me about certain government activities that deserves to be exposed. But until then FOIA remains the most powerful tool in my reporting arsenal.
Jason Leopold is Truthout’s lead investigative reporter. Freedom of the Press Foundation is crowd-funding in support of his FOIA work and on-the-scenes reporting at the Guantanamo Bay trial. You can fund his work here.