The FBI is known to have used a drone in a hostage incident last year in Alabama. Photo via FBI
The FBI has sworn that its drones hover well within legal bounds for domestic surveillance. But even as it insists that its program is both constitutional and transparent, the bureau continues to withhold almost all operational details. It even insists on redacting facts that are already public.
In October, a DC Circuit judge ruled that the FBI had to hand over thousands of documents regarding its use of unmanned aerial vehicles to Citizens for Responsibility and Ethics in Washington (CREW), which had sued over a FOIA request. At the time, the FBI estimated that it had 2,750 pages of documents on drones, for which the judge set a review schedule of 750 pages per month. The rate was kicked up to 1,500 pages last week when the FBI more than tripled its estimate to 7,325 pages.
Judge Kessler justified the uptick in light of the “intense interest in the public's concern about the FBI's use of drones.” But even with more than 1,000 pages released so far, we still know precious little about the bureau’s fleet of UAVs. Rampant redactions and deletions have obscured answers to the most basic questions, including how many drones the FBI has, how much they cost and how often they’re used.
“They’ve been extraordinarily broad in their redactions,” said Anne Weismann, chief counsel for CREW. “It’s insane.”
The latest release of documents, which Motherboard and MuckRock obtained as part of the Drone Census project, is no different. As with previous releases, the FBI has scrubbed away any meaningful information that might help the public to assess this controversial program.
The FBI continues to withhold even summary figures for its drone fleet. Its censors stripped all answers from a blunt 2012 email exchange within the FBI’s Operational Technology Division that discussed aggregate numbers of drones in inventory.
Even outdated inventory figures as far back as 2007 are redacted in full, presumably to prevent extrapolation of past drone holdings to estimate the size of the current fleet.
Despite the bureau's redaction efforts, some details about the FBI’s drone program have come from an assortment of other documents: the FBI has used drones at least ten times, nearly used them an additional three times, and spent about $3 million in building out its fleet. How many it owns remains a glaring mystery.
In removing such information, the FBI invokes a slew of exemptions to the Freedom of Information Act, primarily what's known as the law enforcement exception. This exemption is denoted by “b7E” in the document margins, and protects information which would disclose law enforcement techniques and procedures. What is unclear in many of these redactions is precisely which technique the FBI is protecting from disclosure, as agency officials have confirmed use of drones on a number of occasions.
Responding to questions about the redactions, a spokesman for the FBI wrote by e-mail that he was unable to comment because "this FOIA is subject to litigation with CREW."
“That cat’s already out of the bag,” says Weismann of the basic fact of the bureau's drone program. “Might there be operational details that, if disclosed, could minimize the effectiveness of drones as a law enforcement tool? Sure, maybe. But just the knowing number of drones? That’s like knowing the number of troops we had in Afghanistan. It’s crazy to try to redact it.”
The same discrepancy over what can be discussed and what can't exists in documents that reveal the FBI’s spending on drones. While a Justice Department audit report released in September indicated that the FBI had spent more than $3 million on drones since making its first unmanned vehicle purchase in 2005, all invoices have been redacted to hell.
The FBI’s FOIA officers are so fond of their black markers and whiteout that they’ve even redacted details from documents that were already in the public domain, under the same law enforcement exemptions.
The bureau's discordant approach to transparency bears an echo to that at the White House around the CIA's overseas drone program. While the fact of drone strikes has been documented by journalists and foreign governments for years, the program was long off limits for official discussion by US officials. President Obama finally announced reforms to the drone program last year, including shifting control from the CIA to the military, but the program remains in the shadows.
When outgoing director Robert Mueller told the Senate Judiciary Committee last July that the FBI was in the “initial stages” of developing guidelines for its drone program, a handful of privacy hawks in Congress perked up and requested more details. The FBI released correspondence with three members of Congress—Sen. Rand Paul (R-KY), Rep. Zoe Lofgren (D-CA) and Rep. Ted Poe (R-TX)—in its latest bundle. Paul had already posted in full the FBI’s answers to questions about the scope and purpose of domestic UAV surveillance, but FBI FOIA officers still saw fit to sanitize them.
The FBI's Stephen Kelly closed his letters to Congress by insisting "we share your interest in transparency concerning the use of law enforcement and national security tools."
In addition to law enforcement privilege, the FBI here claims statutory restriction (“b3”) and personal privacy (“b6” and “b7C”) exemptions, as well. A cursory review of Senator Paul’s unredacted letter undercuts each of these withholdings. In a February 2013 kidnapping case in Alabama, in particular, the FBI had already confirmed its deployment of a drone to monitor the bunker where the hostage was being kept.
In one of the more bizarre redactions in the history of the art form, the FBI even blacked out how many times it had obtained authorization to use drones but, for undisclosed reasons, throttled back from actually flying them.
As published in full by Senator Paul, the redacted digit is a “3.” Dozens of outlets have cited both figures repeatedly since last summer, but the FBI stubbornly invokes law enforcement privilege in redacting them.
The FBI's Stephen Kelly closed his congressional letters by insisting "we share your interest in transparency concerning the use of law enforcement and national security tools." His agency has yet to live up to the claim.
Read more in the Motherboard / Muckrock Drone Census.