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Is the Department of Homeland Security (DHS) still filing intelligence reports about journalists?
It seems like a simple question. And I confess I wasn’t expecting the routine status report a federal judge ordered the government to file on Wednesday to raise my eyebrows—much less to warrant an article. But asked to address this apparently easy question, the Justice Department said—in essence—that it’s not sure and will get back to the judge in a few weeks. “Defendant needs additional time to appropriately address the question. ... Defendant’s response could potentially have a wide implication beyond this particular case.”
I don’t have any idea what it means either.
This strange filing is actually the second of two bizarre positions the government has taken in my lawsuit over DHS’s filing of two open source intelligence reports (OSIRs) about me in 2020. I won’t rehash the story of the two reports, about which I have written in detail elsewhere. To understand the first weird position, and how it led to this second one, the only relevant facts are these.
The two intelligence reports (here is the first and here is the second) were leaked to Shane Harris of the Washington Post, along with a third about New York Times reporter Mike Baker. Following their disclosure, DHS issued a statement assuring the public that the practice had been stopped: “Upon learning about the practice, Acting Secretary [Chad] Wolf directed the DHS Intelligence & Analysis Directorate to immediately discontinue collecting information involving members of the press. In no way does the Acting Secretary condone this practice and he has immediately ordered an inquiry into the matter.”
I filed a Freedom of Information Act request to reveal the paper trail on the reports about Baker and me, as well as any other journalists who might have had such reports filed about them. I also sought similar open source reporting for any other people based on their First Amendment-protected activity, information about the use of such open source reports, information about any investigations of the practice after it was revealed, and information concerning policies and procedures about such reporting. In March of last year, I sued, having received no documents in response to my request.
Production of material under the suit has been slow, and it’s fair to say that the litigation has not yet shed significant light on how DHS came to be filing these reports on journalists, what the scope of the activity was with respect to other people’s First Amendment rights, or how the agency ultimately evaluated the propriety and legality of this sort of reporting. I remain hopeful that it will do so in good time, though under the current production schedule, it will be a while.
One thing the department has disclosed, however, is the specific reports about me—but with an important catch. The documents are highly redacted. Assuming these are the same documents that were leaked to me in full, it appears that my name cannot be released—to me. It further appears it cannot be disclosed that my Twitter feed is the subject of the reports. Ditto the substance of my tweets, which is available to all of my more than 400,000 Twitter followers and anyone else who wants to see them.
Remarkably, the government takes the position that these redactions of publicly available unclassified information are justified on the basis of protecting intelligence sources and methods. As the government explains its position to the court:
[T]he Department will provide a declaration explaining that the redacted information within the OSIRs included the sources and methods used by I & A and that the disclosure of these documents in full would reveal intelligence sources and methods utilized by I & A.
Specifically, the records would reveal: (1) the underlying sources of information and intelligence methods that I & A relies upon to engage in information collection that forms its analytical assessments and operations; (2) information that, taken together, may reveal these methods even if it does not do so individually; and (3) information which would reveal the method in which I & A shares information with other entities. Further, to avoid irreparable harm, I & A must protect not only specific sources, but also information that would allow a reader to discern a source or type of source, information revealing intelligence or analytic methods, and information that would assist targets in evading lawful intelligence activities. The obligation to protect sources and methods is direction from Congress that may not be waived by the Department, regardless of whether the source or method is “sensitive” or public, and regardless of whether a plaintiff has concrete or hypothetical knowledge of the source or method being referred to.
Suffice it to say that I and my lawyers take a rather different view of the matter, and sooner or later, the court is going to have to decide who’s right.
This brings us to last week’s status hearing, where the immediate issue before U.S. District Judge Randolph Moss was whether to decide this sooner or later. My lawyers (Jacob Tracer and Andrew Elliott of Jenner & Block) had asked Judge Moss to resolve the question now of whether protecting sources and methods could possibly justify these redactions, on the theory that the answer to this question could affect the rest of the government’s production. If we are right and the government’s position is ridiculous, we argued, it would save everyone time to know that now. The government, by contrast, asked Judge Moss to wait until all the production is done.
Judge Moss indicated, as a general matter, that he prefers to resolve disputes over production at the end, not individually along the way. But there is one thing that might change his thinking on this score, he noted, and that was if he was not confident that the underlying activity—the filing of intelligence reports about journalists—had actually ceased. It was in that context that he asked government counsel to address this question directly. To make sure she had a chance to consult with the client agency, he asked her to file a brief on the matter, rather than demanding an answer in court.
This is the background to the government’s filing Wednesday, and to be frank, I was not expecting the Justice Department to be in the odd position of being unable to answer the judge’s question. Government counsel set her own deadline for this filing, in response to a question from the judge. She asked him for a week in which to file the brief, and he granted her that time—at the end of which she was still not able to give him a simple “no” in response to his question of whether DHS is still filing intelligence reports about journalists. That’s a little unnerving.
Here is the relevant portion of her status report:
On September 21, 2022, the parties appeared for a pre-motion conference and the Court ordered, inter alia, Defendant to file a status report addressing whether ... Defendant discontinued the practice of collecting information involving members of the press. ...
In terms of the first question, Defendant needs additional time to appropriately address the question, as expressed during the September 21, 2022, pre-motion conference. Defendant’s response could potentially have a wide implication beyond this particular case. Consequently, Defendant requests additional time, to and through October 21, 2022, to provide a response.
I may have to wait until Oct. 21 for clarity on this matter, which I agree has “a wide implication beyond this particular case.”
In the meantime, however, I would like to stress two things: First, I am not an intelligence source; and second, reading my Twitter feed is not a sensitive intelligence-gathering method. Much as it would flatter my ego if seeing my daily “Good Morning” image and #BeastOfTheDay tweets counted as an intelligence “method,” it doesn’t. It’s great if government agencies and their personnel want to read my work. But the inability to distinguish between reading a journalist’s social media account and a sensitive intelligence-gathering method is dangerous—both for the intelligence community that can’t see the difference and for the journalists who have to operate in an environment conditioned by that inability.