FBI Denies Defending Rights & Dissent FOIA Request for Files on WikiLeaks, Citing “Pending or Prospective Law Enforcement Proceeding”

The FBI finally response to years-long pending requests, only to evade records disclosure by invoking new exemptions.

On June 5, 2023, the FBI responded to our nearly two year-old request for all FBI records  mentioning or referencing WikiLeaks. The FBI stated that they had located responsive records, but those files were “located in an investigative file which is exempt from disclosure” as the file contains “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ...could reasonably be expected to interfere with enforcement proceedings…”

The response to Defending Rights & Dissent’s FOIA request is hardly surprising. The United States has filed criminal charges against WikiLeaks founder Julian Assange and are seeking his extradition to the US. This is a very public law enforcement proceeding that is currently pending against the figure most closely associated with the subject of the request. While it strains credibility to believe that every single FBI record mentioning or referencing WikiLeaks would cause articulable harm to US government’s efforts to jail a journalist, the FBI is not exactly known for its transparency. 

What made the response interesting was the timing. I originally filed the request on June 22, 2021. On two separate occasions, April 2022 and January 2023, I requested an estimated date of completion. On both occasions I was informed by the FBI: 

"Your request is being preprocessed to another open request on the same subject, meaning a request on the same subject had been received and was already in process prior to receipt of your request.  To avoid duplicative efforts, you will receive the same releases at the same time as the original requester for this subject. The request to which yours will be preprocessed is presently awaiting assignment to a Disclosure analyst who will then review the records to determine if any redactions are required” 

It is entirely possible that this request sat in an FBI blackhole for who knows how long (we don’t know when the other open request was filed, but it seems unlikely 2021 was the first time anyone requested files on WikiLeaks) before a disclosure analyst finally looked at the files and discovered that they were subject to an ongoing, high profile criminal proceeding. At which point, they decided to deny the request. In contrast, when my colleague filed a FOIA request on Stop Cop City, they rapidly received a response alleging that files were exempt for the same reason cited in the response to our WikiLeaks request. 

In my personal experience with FOIA, the FBI, in violation of statute, buries FOIA requests by never assigning them to a disclosure analyst. When I requested a file on a nonviolent Palestinian solidarity organization, four years passed by and the FBI still had failed to ever assign my file to a disclosure analyst. The situation was only resolved when I sued the FBI for violating FOIA. Given my past experiences, I fully anticipated the FBI would never respond to the request absent litigation. Suddenly, however, the WikiLeaks file was either finally assigned to a disclosure analyst or someone made a decision about the file’s exemption. 

Just days before the FBI realized its files on WikiLeaks were related to an ongoing law enforcement proceeding, the FBI made international news after it requested to interview Andrew O’Hagan. O’Hagan is a former ghostwriter for Julian Assange who later wrote a highly negative article about the WikiLeaks founder for the London Review of Books. This led the Sydney Morning Herald to report on June 1 that the FBI had reopened its investigation of Julian Assange. Given the timing of the FBI’s response, its previous delay, and past FBI practices, it’s impossible to not to wonder about a potential relationship between the timing of these two occurrences. Of course, we don’t know and it is possible there isn’t one. 

WikiLeaks has criticized the framing of the Sydney Morning Herald story for stating that the FBI has reopened its investigation of Julian Assange. WikiLeaks argues that the investigation likely never closed.

I think this is most likely correct for a number of reasons. For starters, just because we are unaware of investigative activity doesn’t mean there wasn’t any. I also spoke to a former FBI agent who told me that the FBI would be unlikely to consider a criminal investigation that had produced an indictment closed until a verdict was reached. Finally, it should be noted that while the FBI is a law enforcement agency, it is also a national security agency and intelligence agency. In addition to investigating violations of criminal law, the FBI can investigate threats to national security and collect foreign intelligence pursuant to an executive order. As such investigations are not necessarily designed to produce evidence used in a criminal proceeding, they frequently function as open-ended information gathering expeditions. 

Court filings in 2015 confirmed both the criminal and national security components of the DOJ and FBI were involved in a lengthy investigation into WikiLeaks. While the FBI has denied our FOIA request, there has been a volume of public reporting since the Manning revelations on FBI actions against the online media outlet. Later this week, I will outline on the Defending Rights & Dissent Substack what we do know about the FBI’s role in the war on WikiLeaks.