Anyone having opportunity to review documents released by the FBI immediately encounters the fact that in most cases portions of the original document have been deleted. In some instances, this may consist of only a name or a few words; elsewhere, the entire text of documents has been obliterated (see accompanying examples) prior to their having been "made available" to the public. In such cases, Bureau censors will almost always scribble a code or series of codes - (b)(1)(b), for example - in the margins of each page, explaining the statutory basis upon which they decided to withhold particular bits of information. In order to understand not only the codes, but their underlying basis, it is necessary to review the evolution of such "exemptions.""National Security"
The origins of the FBI's ability to declare its documents (or portions thereof) secret by reason that their release might "compromise the security of the United States" lie in two executive orders handed down during the early 1950s. The first was Harry Truman's EO-10290 (16 FR 9795, Sept. 25,1951) which extended the military system of national security classification over certain nominally civilian police and intelligence agencies engaged in counter-espionage and counterintelligence operations directed at "agents of foreign powers hostile to the United States." The Truman order provided that the Bureau might withhold, even from courts of law, documents deriving from such pursuits under four classifications: "Security Information - Top Secret," "Security Information - Secret," "Security Information - Confidential," and "Security Information - Restricted."
The people's right to know. Information "released" by the FBI on the Rosenberg espionage case more than 30 years after the fact. Such extensive deletion in Bureau investigative documents is not at all uncommon. To the contrary, it has become normative under Ronald Reagan's E.O. 12356 if, indeed, documents are released at all.
Two years later, President Dwight D. Eisenhower effected EO-10501 (18 FR 7050, Nov. 10, 1953) which revised the classification system to include only three categories: "Top Secret," "Secret," and "Confidential." The Atomic Energy Act of 1954 (68 Stat. 921) then added a fourth classification designated as "Restricted Data." Operating behind the shield of this series of headings, the Bureau also developed a sequence of internal classifications of its own: "Strictly Confidential," "Sensitive," "JUNE," and even "Do Not File." Taken together, this complex of security classifications was sufficient to hide virtually the entirety of the FBI's proliferating political action files for a full decade.In 1964, congress passed the Freedom of Information Act (FOIA; 80 Stat. 250), designed and intended to provide citizen access to government files. However, in passing the act, congress failed to challenge the prerogative of the federal executive to simply declare whole bodies of information secret for reasons of national security. Instead, the act allowed agencies such as the FBI to exempt material they felt was:
(A) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national security and (B) are in fact properly classified pursuant to such executive order.This loophole allowed the Bureau to continue hiding its political files for another decade. With the COINTELPRO revelations of the early '70s demonstrating just what kind of documents the FBI was withholding, however, congress amended the FOIA in 1974 (P.L. 93-502) to provide that Bureau claims to national security exemption would be subject to in camera review by federal district courts to determine whether the classification assigned file materials in given cases was actually appropriate. This procedure may seem at first glance to represent a solution to the problem. But, as has been noted elsewhere:The courts have shown reluctance to exercise their new power. Too often, despite notorious abuses by many agencies of the power to classify documents, courts have accepted at face value an agency's allegation that information has been properly classified, and have refused to examine the documents for themselves. 1Part of the problem may have been initially that as of the date the amended FOIA took effect (February 1975), even the lowest ("confidential") national security classification was still defined quite subjectively under Richard M. Nixon's EO11652 (37 FR 5209, March 8,1972) as material of which "unauthorized disclosure could reasonably be expected to cause damage to national security." 2 In 1978, President Jimmy Carter signed EO-12065 (43 FR 28950, July 3,1978), defining the classification somewhat more stringently: "'Confidential' shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security [emphasis added]." Section 1-101 of this order also stipulated that, "if there is a reasonable doubt which classification ['Top Secret,' 'Secret,' or 'Confidential'] is appropriate, or whether the information should be classified at all, the less restrictive designation should be used, or the information should not be classified." Both points were reiterated in a separate directive to the recently-formed Interagency Classification Review Committee (43 FR 46280, Oct. 2, 1978).In its amended form, the FOIA makes no allowance at all for restricting information on the basis of "national security," providing instead that classification must pertain to matters genuinely affecting "national defense" and "foreign policy." Carter's executive order and corresponding ICRC directive follow suit, at least to the extent that they define valid national security concerns as being only those matters clearly bearing on "the national defense and foreign policy of the United States." Section 1-601 of the order also specifies that "classification may not be used to conceal violations of the law, inefficiency, an administrative error, to prevent embarrassment to a person, organization, or agency, or to restrict competition."
As a domestic police agency, the FBI has-by definition - relatively little real role to play in either national defense or foreign policy. This is all the more true when the targets of the Bureau's attentions are U.S. citizens rather than "aliens" or "agents of foreign powers" supposedly operating within the country. Yet, anyone examining those documents the Bureau has "released" for public scrutiny will discover myriad instances in which text has been blacked out, with an accompanying "(b)(1)" notation indicating this was done for reasons of national security. The text of entire documents is often deleted on this basis, as was the case with some 95,000 pages pertaining to the Rosenberg case alone. Further, as Ann Mari Buitrago and Leon Andrew Immerman have pointed out:
The FBI has also been known to "white" out classification markings entirely, so that the reader cannot tell whether the markings had ever been made. This is an unjustifiable practice unless - as is quite unlikely - the markings themselves are exempt under the FOIA. 3These deletion practices have been patently illegal sin 1975 when the amended FOIA took effect and were even more so in light of President Carter's instructions in 1978. Hence, although no FBI employees were ever penalized for their blatantly consistent violation of the law in this regard, occasional court victories forced selected batches of documents into the open. In April 1983, however, Ronald Reagan signed EO-12356 (48 FR 6304, April 9,1983), effectively authorizing the Bureau and other U.S. intelligence agencies to withhold documents as they saw fit. 4 While this does not in itself legalize the FBI's documentary misconduct, it greatly confuses the issue, making it as difficult to force the Bureau to reveal its files as it was in the late 1960s.Police Records
The FOIA offers another set of loopholes, collectively know as the "(b)(7) exemptions," through which the FBI has routinely passed en route to deleting information. The statutory language at issue allows the Bureau to withhold:
... investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with law enforcement proceedings, (B) deprive a person of a right to a fair trial or impartial adjudication, (C) constitute an unwarranted invasion of privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by any agency conducting a lawful national security investigation, confidential information fur nished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel.Taken together, these provide an umbrella under which the Bureau can hide (and has hidden) many things. A particularly striking example concerns the use of the (b)(7)(a) category: the FBI has consistently sought to employ it, but has argued that FOIA applicants should not even be informed that it was being employed insofar as such notification might alert the subjects of investigations that there was (or had been) an investigation of them, and that the investigation was (or had been) in regard to suspected criminal activities. By the same token, says the Bureau, notifying applicants officially that there was no investigation of their activities might serve to allow them to continue criminal conduct "secure in the knowledge that the FBI is not yet on their trail." Thus, in simplest terms, the Bureau holds that it should be able to use the (b)(7)(a) exemption whenever it wants, but the exemption itself should be considered exempt within the "spirit" of the FOIA. As is usually the case, the FBI has simply proceeded to put its novel interpretation of the law into practice from time to time; hence, one finds occasional passages blacked out by Bureau censors without provision of accompanying code notations in the margins.While struggling to prevent its reliance upon (b)(7)(a) from becoming a part of the record, the Bureau has, on the other hand, indulged itself spectacularly in the use of (b)(7)(c), ostensibly to "protect the privacy" of third parties mentioned in documents, but who were not themselves subject to the investigation in question. This tends to possess a certain appropriate sense until we note that the censors have often left many, even all, genuine third party names undeleted in the documents released while simultaneously blacking out the names of agents and FBI officials (including, in one document we have on file, the name of director J. Edgar Hoover himself). The latter, of course, are public officials rather than bona fide "third parties," and have never been legally entitled to "privacy" while in performance of their public duties. The Bureau's attempt to "reconcile" the situation has led censors to apply the (b)(7)(c) exemption to all names of third parties and FBI personnel alike in many documents. Bureau abuse of this exemption category was so flagrant that, in a memo dated May 25, 1977, the Justice Department set forth guidelines intended to curtail at least the worst manipulations:
... if the FBI has a file on John Doe -our requestor - and information has been deliberately placed in that file which pertains to Richard Roe, that Roe information is presumptively information about Doe as well and should not ordinarily be withheld from him on 7(c) grounds. If it does not pertain to Doe, one may well ask, why is it in the Doe file at all? ... the routine excising/denial of all "third-party information" is to cease.The Bureau didn't comply, of course, any more than it has ever conformed to the legal requirements that it restrict its (b)(7)(d) deletions with regard to "informer confidentiality" to appropriate instances. Despite a June 2,1977 Justice Department memorandum emphasizing that the FOIA explicitly prohibited such exemptions to conceal unlawful activities on the part of the Bureau, the FBI has continued to conceal the fruits of its "black bag jobs" (burglaries) behind wording indicating they derive from "anonymous sources" and deleting material as if these sources were actually human beings. Similarly, the product of ELSURS (Electronic Surveillance) is typically referred to as coming from "confidential sources," with information carefully deleted in such a way as to make it appear that censors are protecting live informers.One key to determining the type of activity at issue lies in the use of FBI internal informant identity codes left intact in the documents:
Permanent numbers are assigned to "sensitive" sources of information - for example "CSNY 1020-S*" ("a confidential source, New York") or "CNDI5" ("a confidential National Defense Informant"). Source numbers followed by "S" are I by an "R," "racial." Asterisked sources are -security" sources; by a "C," "criminal, unavailable to testify and are likely to be illegal investigative techniques ... Electronic Surveillances and burglaries are often given "S*" numbers ... 5The FBI has also contended that it is entitled to utilize the (b)(7)(d) exemption with regard to the identity of virtually any informant insofar as individuals performing such a "service" have done so only on the basis of a promise of confidentiality, either expressed or implied. For the most part, this is a categorically false contention. Former FBI agents have pointed out that standard Bureau procedure has always been to instruct informants from the outset that the FBI itself retained the option of calling upon them to testify in open court, an understanding by which promises of anonymity are effectively precluded. 6 The Bureau's convenient "interpretation" of the FOIA in this connection serves to retain its power in determining what (if any) information concerning informers will be released, and facilitates its hiding of illegal intelligence-gathering techniques within the framework of exemptions.Another dubious use to which the Bureau has put the (b)(7)(d) clause has been to consistently delete the identities of government employees and agencies which have provided information during investigations. This is not only contrary to the intent of the FOIA, but in direct contravention of the guidelines laid down in the FBI's own manual, which states clearly that federal employees cannot be considered confidential sources. Bureau censors also habitually extend this lid of secrecy to cover the identities of state and local agencies and personnel, such as police departments, although they have absolutely no legal authorization to do so.
Finally, as with (b)(1) exemptions, there have always been serious questions about how the Bureau utilizes (b)(7)(d) to withhold information for reasons of "national security." Many of the FBI's more outrageous activities have been "reclassified" under national security headings in order to hide them. Although the (b)(7) cluster of exemptions is legally bound to the 1974 FOIA Amendments Congressional Conference Committee definition that national security considerations exist solely in "military security, national defense or foreign policy," as pertains to (b)(1),
... most "national security" investigations [have] had no connection to any national security interest. Investigations other than "criminal" or "applicant" were most often called "subversive," not "national security" cases. Such cases were conducted under headings such as "domestic intelligence," "internal security," "subversive matters," "racial intelligence," or "extremist." Such cases involved domestic dissenters almost exclusively, with no connecting strand to national defense or foreign relations. Yet these investigations are now, for concealment under FOIA exemptions, being justified in the name of "national security." The very term "investigation" is an euphemism when, as is often the case, it denotes a program to suppress lawful political action and speech. 7As with the primary (b)(1), "national security" escape mechanism, much of this transparently illegal Bureau manipulation of the classification system was shielded by Ronald Reagan EO-12356 in 1983.Other Loopholes
One might think the preceding provided more than ample latitude for the Bureau to hide most anything it desired. Not in the view of the FBI. For instance, deletions have often been made on the alleged basis that they are authorized through the FOIA (b)(2) provision that reporting agencies might exempt information pertaining exclusively to "internal administrative procedures" such as "personnel's use of parking facilities or regulation of lunch hours, statements of policy as to sick leave and the like." 8 A 1976 Supreme Court ruling added that the "general thrust of the exemption is simply to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public could not reasonably be expected to have an interest." 9
Notwithstanding these firm instructions, the Bureau has consistently "construed" (b)(2) to mean that it is free to excise such things as markings referring to file numbers, markings referring to type of investigation, records of document dissemination, case leads, agents' initials and notes synopsizing the contents of given documents. Self evidently, all of this might well be of legitimate interest to the public. A May 25, 1977 Justice Department memo ostensibly ended the routine deletion of such material, yet the FBI has persisted in blacking out whatever in the sphere it considers "sensitive." 10 An indication of what is meant by this may be readily discerned in the fact that just one of the markings, "JUNE," refers exclusively to unwarranted electronic surveillance and surreptitious entries. Its very appearance would therefore provide prima facie evidence of illegal Bureau activity.
The notation (b)(3) seldom appears with reference to FBI deletions; when it does, it usually refers to information associated with secret grand jury proceedings. Although the secrecy surrounding such proceedings is objectionable in a number of ways, it is legally valid for the Bureau to withhold such material. Similarly, the (b)(5) exemption, allowing the withholding of documents originating in other government agencies (such as the military, CIA, or local police departments) is seldom used by FBI censors, although it does appear from time to time. Another occasionally used exemption notation, "(k)(5)," derives not from the FOIA but from the Privacy Act of 1974 (88 Stat. 1896). This allows withholding of:
... investigative material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express premise that the identity would be held in confidence, or, prior to the effective date of this section [Sept. 27,19751 under an implied promise that the identity of the source would be held in confidence.Finally, as Buitrago and Immerman note, "One more 'exemption' must be considered: one which, though not mentioned by the FOIA or PA, enables the FBI to keep significant information from requesters. The FBI normally refuses to provide, or inform the requester of, information unilaterally determined to be 'outside the scope of or 'not pertinent to' a request. Unfortunately, for the requester, information kept back as 'outside the scope may be highly pertinent to a request. Yet this information will not be released and its existence will be difficult to discover." 11Conclusion
Despite the considerable range of means, both legal and illegal, available to the FBI to keep its documents (or portions of documents) secret, far more of this information has become public than the Bureau wanted. This is due only in part to such congressional actions as compelling disclosure of many of the Panther COINTELPRO files, processes which almost automatically propel the documents thus released into the FBI reading room. Large quantities of documents have also been released as the result of privately generated law suits - more than 100,000 pages in the Geronimo Pratt case alone, 12 another 100,000 as a result of litigation concerning the 1969 Hampton Clark assassinations in Chicago 13 - and individual FOIA requests. Although each page of this material has been technically "declassified" and introduced into the public domain, the Bureau is not required to make any special public notice of the fact, or to make the items accessible through its reading room. To the contrary, many such documents, once "released," are denied to a different requester.
Many thousands of pages of material therefore remain isolated in the hands of individual recipients and - for FBI purposes - almost as secret as when lodged in Bureau archives. While much of this material is redundant, it still bears a certain research utility since FBI censors have proven amazingly erratic in what they delete. Material blacked out when a document is released pursuant to a given FOIA request or court order may well appear (although other information is usually censored) when the same document is provided with regard to a different request or order. In the same fashion, whole documents which are withheld in a given release often appear in the next. Comparison of multiple releases of the same document allow the assembly of a complete, or nearly complete, version. By using this comparison technique whole files can be assembled.
The task confronting those who wish to see as complete as possible a documentary record (and research base) on FBI activities is thus not simply to try to compel the Bureau to reveal more of its documents, although this is plainly an important and necessary enterprise. It is also to assemble as broad as possible a selection of those FBI materials which have already escaped from Bureau control in one place, where they may be properly catalogued, indexed, compared and rendered generally accessible to the public. Indeed, a need has long been recognized, and on at least one occasion seriously attempted, by progressives. The expense and sheer scale of such effort, however, greatly outstrips the resources and capabilities of even the most ambitious individuals and private political or legal organizations.
Still, the need is there. And it stands as mute testimony to the shallowness of established rhetoric on "scholarship," "openness," and "the public's right to know" that no element of government, or any major library or university, has ever undertaken to approach the task in anything resembling a systematic and comprehensive way. Until someone does, it is left to each of us to gather what we can, and to learn whatever is possible from what we gather.
End of Chapter 1
