1. Taking Another Look
One morning last October, a middle-aged man named Francisco Letelier stepped to a microphone in Washington, D.C.’s Sheridan Circle, surrounded by light Sunday traffic, and spoke to a gathering of maybe a hundred people. Introducing him, the head of the watchdog Institute for Policy Studies said Letelier represented “the power of persistence.” Letelier is an artist and the son of murdered Chilean activist Orlando Letelier. The gathering to commemorate his father had become an annual event; this was the 41st year since the murders of Orlando Letelier and his American assistant, Ronni Moffitt.
Orlando Letelier was killed at this traffic loop by a car bomb planted by Augusto Pinochet’s henchmen. The car exploded in front of the Irish Embassy. There under the hard gazes of assorted international statues around the circle (Ataturk, Sheridan on his horse, Korean and Greek diplomats) stood a small, foot-high monument to Letelier and Moffitt. The stone said, “Justice, Peace, Dignity.”
Francisco, his voice breaking, recalled the abuses of power that led to his father’s murder. By gathering that morning, the group was calling attention to the importance of “showing up, speaking up, resisting, and engaging in dialogue.”
I was there that morning because Scott Armstrong, a former Washington Post reporter, told me about the Letelier murder. It was a case, he said, where a Freedom of Information request had made a difference and sent ripples far beyond the United States.
They didn’t have much hope of making a difference when they started. But Letelier’s widow asked Armstrong to help. Working with a pro bono lawyer, Armstrong agreed to investigate what U.S. officials knew about Letelier’s murder. He submitted Freedom of Information Act requests to the State Department, the Justice Department, and the FBI. Then they waited. In time, their requests unearthed evidence of a conspiracy behind murders throughout the western hemisphere yet beyond the reach of justice.
After Letelier’s son concluded his speech that October morning, everyone present was invited to take a flower across the circle to the small memorial stone. We placed them—yellow, red, striped, violet blossoms—to honor Orlando and Ronni.
Back in my car, I flipped the ignition. As the engine fired, my heart skipped a beat as I realized that would have been the last sound they heard.
2. My FOIA Journey
FOIA (pronounced foya) is an odd acronym that can seem obscure and inconsequential. A small proportion of Americans submits Freedom of Information requests. As a freelance writer, I’ve submitted relatively few FOIA requests to different government agencies. For one project, I requested public records identifying the five biggest exporters in a secretive industry trading an endangered medicinal plant. It wasn’t exactly the Watergate break-in, but the request yielded information that pointed to high-value players who preferred a low profile.
Then for a book project, I began chronicling what happened when a 1940 factory fire in Baltimore triggered a series of events that caught three families up in the war in dangerous ways. The fire consumed a half-million dollars worth of cork. (Quick backstory: Back in our age of plastics, bottle caps and many other products used slivers of cork, which was a crucial sealant in gaskets of all kinds, including the defense industry’s bomber planes and artillery. Cork came from the cork oak forests of Spain and Portugal—so the U.S. industry relied heavily on those imports. The factory fire stirred rumors of Nazi sabotage, and suddenly the cork industry and its workers were in a national security searchlight.) FBI agents combed the scene for days afterward. But besides a few catastrophic photos in Baltimore newspapers, there was little reporting about the investigation. Nothing about it as sabotage in the public record. So I sent a FOIA request to the FBI, and a few more to the CIA and the State Department. My searches took longer than I expected, and the results came piecemeal. Three years later, I know more about the magic and limits of a FOIA request.
Most FOIA requests come from regular citizens requesting information that isn’t necessarily stamped secret, but the government hasn’t made public. In 2016 the Department of Justice received over 73,000 FOIA requests. Some people think FOIA is in the Constitution, buried in the First Amendment. But the Freedom of Information Act is much younger than that, born during Lyndon Johnson’s Great Society. Johnson signed the law grudgingly, recalled Bill Moyers, his press secretary: “LBJ had to be dragged kicking and screaming to the signing ceremony. He hated the very idea of the Freedom of Information Act…” If information is power, giving it away is giving away power, and LBJ never willingly signed any away.
Today journalists regard FOIA as a slow-drip source that rarely pays off in time for their deadlines. Government agencies often manage to avoid the law’s requirement to make information free, deploying nine exemption rationales built into the law. But for people with time to wait for responses, FOIA can be powerful.
3. A Needle
In the National Archives, I pored over cables, memos, blue-ink index cards, web-thin carbons and mimeograph copies, declassified time sheets and information trees for wartime intelligence agency the Office of Strategic Services. Eventually I stumbled across a declassified OSS memo of an interview between an OSS recruiter and Herman Ginsburg, a manager for Crown Cork and Seal. A second memo identified another Crown Cork worker as a possible OSS undercover informant. But then I hit a wall. I needed to submit more FOIA requests.
The protocol of a FOIA request varies depending on which agency you’re asking for information. The Department of State, the FBI, and the CIA each had their own different ways to process requests—some by email, some via web-based form. I submitted FOIA requests to those three agencies for information about Ginsburg and another spy recruit who had also come to the U.S. in their youth. The response time to FOIA requests varied widely. I kept a folder of my requests.
4. A Canary
Scott Armstrong’s first FOIA experience came even before he became a Washington Post reporter 40 years ago. Armstrong was working for the Senate Watergate investigation committee. As an investigator, he saw congressional staff having to submit FOIA requests to the Nixon administration to get information they should have had access to, since it wasn’t classified—but the administration had stonewalled. Armstrong learned that agencies used all kinds of maneuvers to withhold information. Through the 1980s for the Post, he found FOIA good for casting light on obscure government behavior, often indirectly. Memos often opened a window to the decision process. Armstrong said the cc line often showed who was involved in national security decisions, for example. That’s how you might learn about circles of decision makers, information that could be even more valuable than the memo’s content.
At first, Armstrong’s FOIA requests only turned up benign-looking cables. But eventually they led to the discovery of a network of Latin-American secret police agencies in a half-dozen countries. The network, dubbed Operation Condor, emerged from a secret meeting in 1975 of intelligence chiefs from Argentina, Bolivia, Chile, Paraguay and Uruguay (and later Brazil). Operation Condor allowed member countries to send death squads across borders to kidnap or murder political exiles. Condor was a shadowy ring for extrajudicial murder. Pinochet used the ring to silence his critics even beyond Chile.
5. Packing Tape and Glomar
The CIA is notoriously resistant to information requests. But the CIA was the place to go for the legacy of wartime intelligence. They replied to my FOIA request with an old-school hard copy and extreme discretion. First they sent a crisp letter that politely denied my request. Several journalist friends suggested I appeal. So I did. I gave a twofold rationale for my request: that 1) any national security issue in a 1941 file was almost certainly moot, and 2) my intention was to foster a broader awareness of national issues and history among the public. I even mustered a congressman’s support for my appeal.
Almost a year after my first request I received another letter in the mail with the CIA’s reply. This time the letter-sized envelope was sealed with a bold, three-inch-wide strip of brown packing tape. Were they sending a message? The letter inside stiffly declined my appeal, stating memorably that they could “neither confirm nor deny the existence or nonexistence of records responsive to your request.”
Puzzled by the redundancy of “existence or nonexistence” and amused by the packing tape, I contacted a FOIA expert. Corinna Zarek explained that the CIA’s reply had a name:
it’s called a Glomar response and it has a long history and is fairly commonly used by intelligence agencies when admitting the existence of information (even if the information is non-public and can’t be released under FOIA) could compromise security interests of the U.S.
Zarek explained that although the CIA letter said my only recourse for appeal was a lawsuit, I did have one other option: a FOIA ombudsman at the National Archives. However, it probably wasn’t worth trying. Rarely would officials set aside a Glomar. Judges usually deferred to the agency. I’d probably have to accept the defeat this time, Zarek said.
Nearly half of all FOIA requests are denied. And the trend is going in the wrong direction. “FOIA is not as effective a tool as it should be,” Armstrong told me, “it’s a canary in the mine.”
6. The FBI Responds
The FBI replied to my request, saying that the file I requested on Herman Ginsburg was available for me at the National Archives, like an interlibrary loan. That, however, was just the start of the retrieval process. When I gave the reference number to a person at the Archives, he said yes, that file might be available—but I’d have to ask the FBI which specific files were there at the Archives. For that I had to submit another FOIA to the National Archives. This second request had to be made by hard-copy letter. So I sent a letter to the National Archives FOIA office, requesting the file and reaching into another thicket for public information. Five days later came an email reply:
Thank you for submitting your Freedom of Information Act/Privacy Act request to the National Archives and Records Administration. Due to the nature of your request, we have forwarded your request to our Office of Research Services, Special Access and FOIA staff, for appropriate handling. …Federal records are transferred to NARA no earlier than 15 years and as late as 30 years from the date the document was created. You will be assigned a new tracking number by that office within the next 20 business days.
They gave me another email address at the Archives for follow-up.
7. The CD Down the Hall
These exchanges with the Archives’ staff continued through that spring as they reviewed the material I requested, sifting what information could be shared and redacting in heavy marker what couldn’t. Finally, a FOIA official at the Archives wrote that she had completed a line-by-line review of FBI case files and redacted material “exempted from disclosure in accordance with the Freedom of Information Act (5 U.S.C. 552)… The redactions were applied to protect the identities of confidential sources…” Two files, totaling 84 pages, would be available to me at that location. I could “view a sanitized version of 100-HQ-417406, and a copy of 100-WFO-31318 free of charge in our Motion Picture research room in College Park, Maryland,” the message said. At the reading room they would “provide a CD, for use in the Motion Picture research room, containing a copy of the file in PDF format. You may use this CD to download the file to your personal laptop or thumb drive at no cost to you.”
I was lucky: The College Park facility was only 25 minutes from where I lived. What about requesters writing from the West Coast? I tamped down my hopes and made an appointment for July 6, 2016. That morning I drove around the capital beltway to the Archives facility and found my way to the empty stretch of Adelphi Road. I passed through the security process at the entrance, had my pages of scratch paper stamped (to show that I didn’t steal any from the Archives’ collection) and passed through another security stop to get to the fourth floor.
On the surface, the setting looked like a university library. When I presented my email with the FOIA response, the clerk pointed back into the research room past bookcases containing video and film cases. It was like a librarian had pointed me to the reference desk. Except I was being directed back to a security desk to sign for a limited-use CD. I could sit with my laptop and copy the CD’s files onto my computer. But I could not take the CD itself, which had been burned specifically at my request.
Another story Scott Armstrong told me rattled around my head. He learned the CIA kept a database of all the declassified material that it had already released, so he submitted a FOIA request for that database—all of it. “They hemmed and hawed,” he said. “Finally they said they would provide a printout. It was on old computer paper, the kind with holes punched at the edge? It was two stacks of computer paper, each standing six feet high.”
“No,” Armstrong told the CIA, “I want it as a computer file.” Again they delayed. Finally the requested file would be available to him at a reading room in the National Archives—maybe this room where I now sat. Armstrong could read the file on a computer in the reading room, and he could print it out there. But he couldn’t copy the file or take it away. “A ludicrous sham!” he cried.
Still Armstrong goes back to the well, asking for more.
In the Archives reading room, I held the CD with the FBI file on Herman Ginsburg. Following instructions, I took it to a table nearby, opened my laptop and popped in the disk.
The restrictions on the movement of that physical CD struck me as absurd. What was the sign-out procedure protecting? What security was this declassified information securing?
There were exactly two PDF files on the disk. Before opening either, I immediately copied both files onto my computer. Then I started scrolling through the first file. As I scrolled through, my sense of the light in the room shifted and my eyes became hypersensitive to the sunlight from the bank of windows. My pulse quickened. I felt like I was getting something for my democracy.
8. Palimpsest from a Dark Era
When at the end of a long search, the thing that was secret arrives just for you, it feels magical. Novelist John Edgar Wideman captures that feeling in Writing to Save a Life, his book about his investigation into the history of Emmett Till and his father, Louis Till. For Wideman, the journey started with a call to the National Archives to request Louis Till’s military records. Wideman soldiers through a series of voicemail messages and wrong turns. Then the magic: After weeks of calls and putting his request in writing, he receives a package in the mail containing the file of Louis Till’s military trial.
Then, inexplicably, for days after the packet arrives he does not read it. Whether from delayed gratification or from fear of its contents, it’s hard for him to say. But I think I understand. There’s something about how the expectations grow in the months after sending a FOIA request. When the result arrives, you want time to take a breath, rein in hopes (“Surely this piece that was secret will answer my quest”) and brace yourself for disappointment.
When Wideman finally reads the file, it stirs waves of emotion and more questions for him. First, how could this information have been withheld from the public? And then: Did the FOIA staff, in their presentation and sequencing of the photocopies, try to influence how Wideman interpreted the file? Was the transcript of Till’s trial assembled 60 years ago or pulled together “just yesterday in response to my Freedom of Information request”? Had anyone read the government file that he was reading now? Wideman imagines contacting the Archives official who sent him the file, “whose name I tell myself each time I see it I should write down in my notebook for safekeeping. To thank. To pester for more. To hold responsible.”
Like Wideman, I paged through the PDF that I received on my laptop screen in the National Archives, hyper-conscious of the packaging of this information: the inscrutable numeric file names, the cover page’s hodgepodge of fonts, from the calligraphic “U.S. Department of Justice” to the sans serif “Federal Bureau of Investigation” and “Screened by: LM Date: 06-29-2016 FOIA,” the date of the Archives’ reply to my request. The big bold letters: “Use Care in Handling This File.” I tried to decipher the “Confidential” stamp, crossed out, and the photocopied form describing the FBI report from March 1955, Washington, D.C.
Reading the files suggested a dragnet from the nadir of McCarthy-ite anti-Communist hysteria. In 1955, when the loyalty-security mania was at its fiercest, the CEO of an international enterprise became a suspected Communist. This was not what I expected. The files showed the chilling effect of investigations behind the televised McCarthy hearings, that reached into people’s memories and hearsay. Pages of interrogations into Ginsburg’s past—interviews with associates, relatives, classmates, and acquaintances from his youth. Interviews with his ex-wife and his siblings. The grainy black and white of scanned documents, accusations of being a Communist, a traitor. Based on one informant’s testimony, Ginsburg’s life was turned upside down. The FBI sent investigators to find former Communist organizers in rural New Hampshire and grill them. Agents in Baltimore interviewed city police officers about Ginsburg’s arrest record. One February day an FBI agent went hunting in the public library to find the 1928 city directory, to determine Ginsburg’s 1928 address and occupation back then. FBI agents visited the University of Maryland Law School and asked the librarian for the 1927 yearbook to find a photograph of Ginsburg and record his “enviable scholastic record.”
In short, where I expected to find information recognizing Ginsburg’s contribution to the wartime intelligence effort in the 1940s, these files showed me the government’s efforts to destroy him. After Ginsburg had lent his energy and intelligence to defeat fascism, federal agents came and ran down every lead on his youth. They poisoned his past.
The experience of being harassed by the FBI left Ginsburg wounded and paranoid for years. No wonder that a colleague who met him later found him deeply suspicious. Against the taint of federal investigation and humiliation, Ginsburg managed to salvage his life and his second marriage.
9. Sunlight Among the Secrets
During one of my visits to the Archives as I hunted through OSS records, waiting for files to roll out on a handcart, I looked up and saw, in large letters on the screen above the checkout desk, “Happy 50th Anniversary to the Freedom of Information Act! ‘Sunlight is the best disinfectant.’ —U.S. Supreme Court Justice Louis Brandeis.”
Then it flashed away and disappeared.
I stood there, surprisingly moved. The Archives was quietly marking LBJ’s little-sung, unloved law. Several dozen Archives visitors like myself glimpsed the salute as they were exercising the right it celebrated.
10. The Car Bomb at Sheridan Circle
Official confirmation can be a small thing, but it has impact. Documented existence of the secret network of police squads known as Operation Condor emerged in the late 1970s from Scott Armstrong’s FOIA requests. Forty years later, those results continue to ripple. U.S. intelligence files declassified in 2015 proved that Pinochet issued the order to kill Orlando Letelier. State Department records also showed that a month before Letelier’s murder, Henry Kissinger attempted to orchestrate conversations by U.S. ambassadors in the six countries involved in Condor to express “deep concern” at possible political assassinations. The U.S. government knew about Condor at least weeks before the car bomb killed Letelier and Moffitt.
In May 2016, judges in Buenos Aires ruled in the first court case brought against Condor conspirators for murders committed in Argentina. Eighteen former Argentinian military officers, including the country’s former dictator, were convicted and sentenced for kidnapping, torturing and “disappearing” more than 100 activists, including citizens of four other countries. The case was a milestone in moving Condor’s existence into the public record as a killing, multinational conspiracy. The real international conspiracy was even more sweeping than the one conjured by Hollywood in the 1975 film Three Days of the Condor. And its unraveling came, in good measure, due to the cumbersome and imperfect process of FOIA, in the hands of someone who cared enough to persist like Scott Armstrong.
A key piece of evidence in that trial was a declassified 1976 cable from an FBI agent that described Condor in detail.
At the courthouse where the ruling was announced, a Chilean woman choked up as she described how Operation Condor had affected her family. Her brother had fled to Argentina, was kidnapped in Buenos Aires, and vanished. “This trial is very meaningful because it’s the first time that a court is ruling against this sinister Condor plan.”
And every fall, the group remembering Letelier and Moffitt gathers at Sheridan Circle—family members, activists, and government officials—to invoke the message of Justice, Peace, Dignity.
FOIA, in that sense, is more of a relationship than it is a bureaucratic transaction. Armstrong says, “We’ve created a situation now where you have to have a long-range view.” He downloads the State Department phonebook every time he finds it available online. He might not know why he needs it until much later, by which point it may no longer be accessible. Who could predict the value of State Department cables for a murder trial four decades later?
In June 2016, President Barack Obama signed a law updating the Freedom of Information Act, making more government memos accessible after 25 years. No friend to FOIA for most of his presidency, Obama had set a presidential record for censoring or denying access to FOIA-requested information. The number of unanswered requests governmentwide climbed past 200,000. Under Trump, FOIA is an even more brittle tool for holding an unpredictable executive branch accountable. As most FOIA experts predicted at the start of his term, access to federal records continues to decline. At 50 years old, FOIA as a tool for accountability could be just getting started, with more longtime users like Armstrong. Or it could be winding down.
