Blog — Department of Justice

January 06, 2015

How Do the FBI’s Self-Described Domestic Law Enforcement Drones Implicate Foreign Intelligence?

By Anne L. Weismann


For years the FBI operated a secret drone program that only came to light in June 2013, during then-FBI Director Robert Mueller’s testimony before the Senate Judiciary Committee.  Since this revelation, the FBI has attempted repeatedly to downplay both the size and significance of its drone program, insisting drones are merely one of the law enforcement tools the FBI has used sparingly in missions related to kidnappings, search and rescue operations, drug interdictions, and fugitive investigations.

Curious to know more about the broad outlines of the FBI’s drone program, including the source of and funding for its drones, who has provided the FBI with drone training, and any FBI policy on drone use, CREW filed a Freedom of Information Act request with the agency. Predictably the FBI stonewalled, forcing CREW to sue the agency for information.  Eventually, in response to court orders, the FBI processed 6,720 non-duplicative pages of documents, releasing only 1,970 – most of which contained extensive redactions – and withholding the rest as exempt in their entirety under FOIA Exemptions 1 (classified information), Exemption 3 (information protected by the National Security Act), Exemption 4 (solicitation-related material submitted to the FBI by vendors supplying drones as well as operator manuals and vendor training documents), Exemption 5 (claimed deliberative material), and Exemption 7(E) (non-public investigative techniques).  The FBI then moved for summary judgment, relying on a sworn declaration of an FBI official to claim it had produced everything required. 

There is a lot to criticize in the FBI’s motion and CREW was scathing in its response, but most outrageously, the FBI relied heavily on Exemptions 1 and 3, under which information may be withheld to protect intelligence sources or methods pertaining to foreign activities of the United States.  So how exactly do records regarding the use of drones by domestic law enforcement implicate the foreign activities of the United States?  How would information pertaining to the FBI’s source and funding of drones, its drone training, and policies reveal anything about U.S. foreign intelligence activities “in or about a foreign country,” we asked.

There are two possibilities.  Either the FBI has lied to both the public and Congress about the scope of its drone program as narrow and limited to domestic use, or the FBI’s declaration failed to accurately reflect the true impact disclosure of the requested information would have.  In either case, the FBI’s reflexive and unjustified non-disclosure violates the fundamental precepts of the FOIA:  letting the public know what our government is up to.  Instead, the FBI is trying to shroud its drone program in secrecy to prevent the public from understanding its contours and whether and how it comports with the law. 

CREW will keep asking the hard questions of the government with the goal of assuaging concerns about this program, or sound the alarm on an agency run amok.  What we categorically will not do, however, is settle for the sleight of hand the FBI has attempted here.

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