The New York Times ACLU Story Begins to Look A Bit Fishy:
If I'm not mistaken, it's beginning to look like Eric Lichtblau's New York Times story about the FBI's keeping records on the ACLU is based on a serious misrepresentation. I haven't reached the bottom of the story yet, and I'm tentative about my conclusion, especially given that I am not a FOIA expert. But I worry that the facts may be pretty different from what the New York Times is reporting. [UPDATE: See the end of the post for an important update.]

  First, a brief recap. You will recall that the New York Times reported today that the FBI had 1,173 pages of records "on" the ACLU, which makes it sound like the FBI is keeping a large dossier on the ACLU. In the post below, I noted that the number cited in the Times story was from a DOJ court filing that said the FBI had 1,173 pages of documents relevant to a FOIA request by the ACLU. The question I posed below was whether it was fair for the New York Times to assume that every page that is potentially responsive to the ACLU's FOIA request is a page "on" the ACLU.

  I think we have an answer to that question, and the answer seems to be "no." A friend who is a FOIA expert pointed me to a .pdf file containing the text of the ACLU's FOIA request in this case. If I understand FOIA correctly, the 1,173 figure is the number of documents found by the FBI to be responsive to the ACLU's request. So the question is, what exactly did the ACLU request?

  It turns out that the language of the ACLU request was tremendously broad. The ACLU didn't request just documents about the ACLU, or documents about monitoring the ACLU. Rather, it made an extremely broad request that asked the FBI to collect any documents in its possession that even just referred to the ACLU. The key language starts on page 6 of the ACLU's request, see especially paragraph 1 of 18, and the language of the request goes on to page 8.

  I'm not entirely sure, but my suspicion is that the New York Times reported the number of FBI pages that mention the ACLU as if it were the number of FBI pages that were about the ACLU and its activities. It seems to me that the difference is considerable. For example, imagine that one FBI agent e-mailed a press clipping about the FBI to another FBI agent, and that press clipping contained a quote from Anthony Romero identifying him as the Executive Director of the ACLU. That document would seem to be responsive to ACLU's request: it is a document possessed or transmitted by the FBI that refers to the ACLU.

  Here's an interesting question: Where did Times reporter Eric Lichtblau get the idea that the 1,173 documents were "on" the ACLU, rather than than that they just mentioned the ACLU? I've blogged before about how the MSM has a tendency to rely heavily on ACLU press releases instead of underlying documents, and I wonder if this may have happened again. Here is how the ACLU press release presents DOJ's court filing in response to its FOIA request:
Government Has Amassed Thousands of Pages on National Peace and Civil Rights Organizations

  NEW YORK — The American Civil Liberties Union today revealed that the FBI has amassed more than 1,100 pages of documents on its organization since 2001, as well as documents concerning other non-violent groups including Greenpeace and United for Peace and Justice.
  "We now know that the government is keeping documents about the ACLU and other peaceful groups - the question is why," said ACLU Executive Director Anthony D. Romero.
  . . . "The government’s claim that it needs nine more months to turn over these documents is a stalling tactic," Romero said, referring to the FBI’s request for more time to "process" the 1,173 pages of documents it says it has on the ACLU.
  Note that the ACLU press release features the 'pages on the ACLU' concept several times in just the beginning of its press release. (I think it's also kind of funny that the press release credits the ACLU with "revealing" the information, when it seems that it was filed in open court by DOJ, but I think you have to give the ACLU a little poetic license with their press releases.)

  Now let's compare the ACLU's description of the disclosure with the opening two paragraphs of Eric Lichtblau's story in the New York Times (emphasis mine):
  The Federal Bureau of Investigation has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups in what the groups charge is an attempt to stifle political opposition to the Bush administration.
  The F.B.I. has in its files 1,173 pages of internal documents on the American Civil Liberties Union, the leading critic of the Bush administration's antiterrorism policies, and 2,383 pages on Greenpeace, an environmental group that has led acts of civil disobedience in protest over the administration's policies, the Justice Department disclosed in a court filing this month in a federal court in Washington.
  Hmm, looks pretty similar to me. Of course, it could be a coincidence. But it does look a bit suspicious.

  Am I being unfair, or have I misunderstood the facts? I am not a FOIA expert, so I'm not entirely confident in my conclusion. If I'm wrong, I'll be delighted to post a correction immediately. Plus, I should point out that it is at least theoretically possible that all of the documents that "refer" to the ACLU are actually "on" the ACLU. At the same time, my tentative sense is that Lichtblau's story may have a significant error.

  UPDATE: In a comment, reader Fabian has a possible explanation for the perceived inconsistency: It may be that the ACLU's request was very broad, but that the way the FBI responds to even broadly-worded FOIA requests ensures that the responsive documents are more-or-less fairly described as being "on" the relevant group. I don't yet know enough about how the FBI responds to FOIA requests to have certainty on this, but I wanted to flag it as a possible explanation for now. More on this tomorrow, I hope.

Related Posts (on one page):

  1. The New York Times ACLU Story Begins to Look A Bit Fishy:
  2. Help Needed on ACLU Dossier Story: