We’re Suing the FBI. And the NSA.

Defending Rights & Dissent — May 4, 2022

On Friday April 29, 2022, Defending Rights & Dissent brought a lawsuit under the Freedom of Information Act against the Department of Justice, Department of Defense, Federal Bureau of Investigation, National Security Agency, and the National Geospatial-Intelligence Agency.

These agencies are stonewalling our FOIA requests seeking to understand the scope of investigation into leaks about the drone program that culminated in the Espionage Act prosecution of Daniel Hale. After Hale was sentenced to 45 months in prison, we filed FOIA requests with multiple federal agencies seeking records related to leak investigations resulting from information on the US terror watch list and the US drone program published by the Intercept, and any records mentioning or referencing “The Drone Papers” (a series published by The Intercept) or The Assassination Complex Inside the Government’s Secret Drone Warfare Program.

“Using the Espionage Act against a journalist’s source is an assault on press freedom. It is about silencing journalism by intimidating whistleblowers. In the case of Daniel Hale and the drone papers, we know the government raided his house as part of an Espionage Act investigation in 2014, but no charges were brought until 2019. We know the initial raid came very quickly after the first story was published, when the government believed he was the source for. And we know that a former NSA official has complained the government did not, following the precedent set by the Assange indictment, prosecute the journalists who worked on this story along with the source. Yet, there is still a lot we do not know. Given the implications that this type of investigation of journalistic activities has on core First Amendment freedoms, the government cannot get away with being opaque about its conduct,” said Chip Gibbons, Policy Director, Defending Rights & Dissent.

“The expanding use of the Espionage Act in leak cases over the past decade raises extremely concerning questions about press freedom. This records request therefore is of urgent public interest. American citizens have the right and expectation to know as much as possible about how the Department of Justice is handling leak investigations that tread so dangerously into the core territory of First Amendment freedoms,” said Jesselyn Radack of the Whistleblower and Source Protection Program (WHISPeR) at ExposeFacts. Radack has represented a number of whistleblowers indicted under the Espionage Act, including not just Daniel Hale, but also Edward Snowden, Thomas Drake, and John Kiriakou

All of the records requested were based on information made publicly available during legal proceedings. All federal agencies have either denied the request or failed to produce the requested documents. In the most absurd response, the NSA claimed it could neither confirm nor deny the existence of the information requested about a known criminal investigation. The NSA claims that doing so would require the NSA to comment on the authenticity of media reports about its activities. Yet, the government has already done so. The Department of Justice, in its indictment, specified which documents originated from the NSA and on what date they were published. While the drone program may be shrouded in secrecy, the government has repeatedly publicized its investigation into the publishing of information about the drone program.

Our FOIA lawsuit seeks to compel multiple federal agencies to release these documents.