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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:
Reader:
I think you are reading far too much into the word "on." A piece of paper that contains any amount of information concerning A, B, C, and D is a piece of paper "on" A, B, C, and D.

Is it "exclusively on" A? No.

Is it "primarily on" A? Depends on what exactly the piece of paper says.

But then, the NYT didn't say "exclusively on" or "primarily on." It just said "on." It seems to me that you could accuse the NYT of being inappropriately vague for a newspaper, and maybe you can even say using a vauge term is misleading, though I'm not convinced a significant portion of the population would read as much into the word "on as you have. Honestly though, calling "on" a "serious misrepresentation" is a big stretch.
7.18.2005 11:18pm
Tom Holsinger (mail):
I suggest a Name An Entry contest on the subject of this thread, titled:

No, No, No! - You Have It All Wrong!

Why There So Many FBI Files About the ACLU

Here are three entries:

1) Because of background checks for the covert Bush administration program to keep ACLU members from being appointed to the federal bench;

2) Because of all the ACLU complaints about the Patriot Act;

3) Because there is a dyslexic FBI clerk who keeps typing "ACLU" instead of "UCLA" in the background check reports on law professors nominated for the federal bench.

I suggest Orin Kerr select the winning entry.
7.18.2005 11:30pm
billb:
Guest:

I think that most people read "on" in the context of the FBI as "to hold against." When the cops have something "on" you they don't just have your name in the phone book, they have something they think is incriminating, or, at least, that's the popular view.

I suppose (thanks to Orin) that these 1100 documents inlcude those that merely reference the ACLU with such statments as "see ACLU report #123123" or "protest was attended by people wearing shirts from the ACLU, Greenpeace, ELF, Al Qaeda, and the Tooth Fairys' League for the Protection of Toothloss."
7.18.2005 11:37pm
OrinKerr:
Reader, I appreciate your thoughtful response.

I wonder, though, whether your reading is one that others share. I usually hear the word "on" in this context to mean "primarily concerning." So if I say that I am writing a book on horticulture, or that I saw a TV show on UFOs, I would be taken to mean that I am writing a book primarily concerning horticulture and a TV show primarily concerning UFOs. I wouldn't be taken to mean that somewhere in the book the word horticulture appeared, or that the TV show at some point mentioned UFOs.
7.18.2005 11:38pm
arbitraryaardvark (mail):
It's a bit like google - volokh conspiracy will produce millions of hits, "volokh conspiracy" not as many but still lots, "secret conspiracy to name juan non-volokh to supreme court" probably none. There's an art to FOIA requests. Too narrow, and they leave out the document they know you want. Too broad, and they tell you that'll take 2 years and $300,000. here is a link to a beginner's guide. A cynical person could wonder if the aclu, which has this expertise, deliberately cast a broad net in order to create controversy. They could then wonder if the nyt was in the game, etc.
7.19.2005 12:14am
Humble Law Student:
I'm with Orin and billb. The denotative meaning of the NYTimes "on" construction may be technically acceptable. However, the connotative meaning of the NYTimes article implies that the 1,100 documents are directly related to ACLU activities. (one wouldn't gather that many of the documents may just make a passing reference to the ACLU.)
7.19.2005 12:19am
Steve:
I think your criticism of the article is fair. If nothing else, you certainly provided a lot of red meat for a certain segment of the blog-reading public who believes the ACLU has about as much right to exist as the UN!
7.19.2005 12:22am
Reader:
Orin, I agree that if you said that you were writing a book on horticulture, I would assume that your book is primarily concerning horticulture. However, "on" has a plethora of meanings, and I do not think that the book analogy is apt in the context of the NYT article.

First, this analogy is not a comfortable linguistic fit, because Eric Lichtblau wasn't talking about "a book," he was talking about "internal documents." If this seems like splitting hairs, indulge me for a second:

A "book" is "[a] written or printed treatise or series of treatises, occupying several sheets of paper or other substance fastened together so as to compose a material whole. (Oxford English Dictionary) (emphasis added). We expect a book to have a common theme or single subject, so when somebody says "I am writing a book on horticulture" it is reasonable to associate "on" with "primarily concerning."

"Documents," on the other hand, are "[s]omething written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, title-deed, tomb-stone, coin, picture, etc. (Oxford English Dictionary) (emphasis added). Documents may contain information on multiple subjects at once. In this context, "on X" merely means that some of the information contained therein is about "x."

Second, if you think that the linguistic argument is removed from real world experience, consider how a document review actually occurs in context. Let's say that you are a senior associate or a partner at a law firm and you need some help with discovery. You tell a young associate to go through a stack of papers and pull all of the papers "on X." Would you consider the associate to have done a thorough job if he or she only pulled the pages which "primarily concerned" X, but did not flag other documents containing discoverable information "on X?

This latter analogy seems much closer to the context in which Eric Lichtblau uses the term. Somebody at the FBI had the unenviable task of pulling all of the documents "on the ACLU," and Eric Lichtblau reported just how many pages got pulled.

Billb, I do not think your definition is the best way to interpret the article, for three reasons:

First, it is factually false that "on" means "to hold against." Or, at least, after looking in several dictionaries, I cannot find an entry which supports your point.

Second, how could "on" possibly" mean "to hold against" in context? Eric Lichtblau isn't suggesting that the FBI has incriminating information on the ACLU. If anything, and especially if Orin's thesis is correct, he's suggesting that the FBI is compiling data on the ACLU despite that it has nothing incriminating.

Third, the way you are using "on" is a colloquialism. I seriously doubt that the NYT intended the article to read like an old gangster novel.
7.19.2005 12:46am
CrazyTrain (mail):
Oh my god, it's Rather-gate all over again. MSM is biased. MSM is biased. Call Instapundit. . . .
7.19.2005 12:50am
Adam S (www):
I'd like to look at the mention vs. focus question. If we are to believe that most of the 1100 documents mention the ACLU in passing, or in the context of a lawsuit, then shouldn't we expect to more ACLU documents than Greenpeace documents?
7.19.2005 12:55am
OrinKerr:
Reader, thanks again for your thoughtful response.

I don't find your linguistic argument persuasive, though. Do we really assume that books are about one subject, but documents (or in this case, "pages")are about multiple subjects? That doesn't seem right to me.

As for how a document review might work in civil litigation, I'm not sure why that is relevant.
7.19.2005 1:01am
Fabian:
Orin wrote: "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?"

That's not right. The question is, actually, what did the FBI search for?

As it turns out, the FBI searched for documents that it had indexed with the name of the organization in question. And how does the FBI index? Well, as the FBI's David Harvey explained to the Court:

"The decision to index names other than subjects [of an investigation], suspects, or victims is a discretionary decision made by the FBI Special Agent ("SA") assigned to work on the investigation, teh Supervisory SA ("SSA") in the field office conducting the investigation, and the SSA at FBIHQ. The FBI does not index every name in its files; rather it indexes only that information considered to be pertinent, relevant or essential for future retrieval." -- Hardy Declaration at page 20.

What does this mean? It means that it is highly unlikely that the 1,173 documents are those that "just refer[] to" or "mention" the ACLU. Rather, they are likly all or overwhelmingly documents that someone at the FBI decided should be indexed with the ACLU's name for later retrieval. And that sounds like documents "on" the ACLU to me.
7.19.2005 1:17am
PL:
I agree with Kerr that the use of the word "on" is misleading, but I fail to see why this is such a huge deal unless only a tiny percentage of the documents are primarily concerned with the ACLU. If, say, only 100 of the documents are primarily concerned with the ACLU, I'm not sure the effect of the story is much different.

(Then again, I think most conservatives have waived all rights to complain about the use of misleading statements! See, e.g., their defense of Bush's constant use of Iraq and 9/11 in the same sentence.)
7.19.2005 1:25am
OrinKerr:
Fabian,

Thanks for your comment; I think the key to this may indeed be in the language of the Hardy affidavit. But after giving the affidavit a very quick read, I'm not sure that the section that you mention is the exclusive means of querying the FBI's database to get the FBI's figures. In other words, it may be that some of the documents were found based on that method, but others were found in other ways. Do you read the Hardy affidavit to say that querying the casefile is the exclusive means by which the FBI answers FOIA requests, or that it is simply one of the ways? At this late hour, I'm not sure.
7.19.2005 1:45am
Tom Holsinger (mail):
It may also be that legal words of art in FOIA litigation are involved here, i.e., that the terms used by the FBI to index documents are not necessarily those used in court rulings. In such an instance the FBI's terms would not be conclusive.
7.19.2005 2:08am
billb:
Guest:

Funny you should mention dictionaries, since my favorite online dictionary (dictionary.com) has exactly this usage included in its entry (see 11b), and it makes it clear that the connotation is negative (not that I want to get into a dictionary war).

Furthermore, the colloquialism (given that it is one), in my experience, is dominant in the context of law enforcment agencies. Who cares what the NYT's authors intent was in this case? The article clearly provoked the negative connotation, or we wouldn't be having this dicussion.

Perhaps changing the "on"s to something more neutral would be enough, but I think some would like some more explanation of the potentially broad nature of FOIA requests and responses.
7.19.2005 2:59am
Fabian:
Orin--

Hardy describes the search as follows:


In this case, the FBI has employed several mechanisms as part of its search efforts to identify documents responsive to plaintiffs' requests. Both the Automated Data Base ("ADB") and Inactive Indicies of the Central Records System ("CRS") at both FBIHQ and several field offices were searched for any records pertaining to the multiple subjects requested by plaintiffs. In addition the FBI sent electronic communications ("ECs") to affected field offices and all FBIHQ divisions requesting that hand searches be conducted in response to plaintiffs' requests.


The emphasis on "subjects" is mine, and I read that to indicate a search of the indexed terms. The question, then, is the scope of the hand searches (see paragraph 31). I find it implausible -- certainly not impossible, though -- that FBI personnel have engaged in some kind of systematic search of every document at the FBI for any mention of "ACLU". More likely, I believe, is that certain files were selected to be searched because they were believed to contain responsive material. If so, my guess would be that files were chosed to be hand-searched where "ACLU" was an indexed organization with respect to those files but other information indicated that the file was also likely to contain a large number of non-responsive documents. But that last part is pure speculation on my part.
7.19.2005 8:11am
DNL (mail):
Fabian:

That's probably true, but it is irrelevent. The ACLU assumes that the FBI indexes things due to ideological and not pragmatic concerns. This is hardly the case.

People join the ACLU because they believe in civil liberties (as defined by the Union) to be a good thing. It does not follow that people join the FBI because they disagree with the ACLU on these issues. Therefore, it does not follow that when the FBI indexes one of its files with the "ACLU" tab, that they are doing it because they are monitoring the ACLU's activities.

More likely than not, the indexing is for policy formation reasons. If the FBI does something novel, the ACLU is almost certain to object, and to do so vocally and with novel (and potentially extreme) arguments. It is worth flagging the file just to see the ACLU's take on the subject. First, the FBI policymakers may truly want to make their plans liberty-friendly. Second, they certainly want to know what types of counter-arguments will be voiced. Either way, the indexing is pragmatic and acceptable.
7.19.2005 10:29am
Fabian:
DNL--

I have no opinion as to the reason the FBI is doing the indexing, and thus cannot have an opinion as to whether the indexing is "pragmatic and acceptable" or not. Indeed, inasmuch as the indexing decision is "discretionary" my guess would be that there are multiple reasons why a document might be indexed with a particular subject. Presumably we will eventually see at least some of the documents idexed to the ACLU and we will find out.

The question I am interested in is the question raised by Orin in the first place, which is whether the NY Times story is based on a "serious misrepresentation". In my view, if a document has been "indexed" as relating to the ACLU in the manner described by Hardy, then the document can be fairly said to be a document "on" the ACLU -- to me it is the equivalent of making a copy of the document and keeping it in a file named "ACLU file". Accordingly, I am, at this point, inclined to believe that the NY Times story is not, in fact, based on a "serious misrepresentation".

Whether or not the fact that the FBI has 1,000 or 3,000 documents "on" the ACLU is a matter that should concern us is another issue, and one that I just don't know enough about to have a solid opinion on yet.
7.19.2005 10:47am
Some Random Guy (mail):
Gasp! You mean the New York Times misrepresented the facts of a story to serve the political bias of the author/editor?!! I'm shocked. Shocked, I tell you!

By the way, I have some investment-grade real estate for sale in the lush forests of South-Central Florida. In this market, you can't lose...
7.19.2005 6:15pm