I won a big FOIA victory, and all I got was this stupid police state.
“[Y]ou just helped me make FOIA history,” writes Kel McClanahan, Esq., the Freedom of Information Act (FOIA) lawyer I retained years ago for my National Science Foundation-supported graduate research on bias in polygraphs, popularly known as lie detectors. Kel just won a Circuit Court appeal on my behalf, arguing students are educational requestors. This win improves access to the FOIA system for young scholars by making it harder for agencies to price them out of requests. In a highly stratified society where what judicial and administrative due process is due can seem to change according to your race and class, this victory makes effective information access more equal.
It’s a Pyrrhic victory. Last year I left America and my postdoctoral fellowships at UCLA and Harvard working on the Justice Database. I felt the U.S. was no longer a safe place to do policing and intelligence research at the highest level. So I got on a plane with a backpack, telling friends and family I felt called to make art and see the world. I do not have plans to return.
The data I sought for years from multiple federal agencies, which would allow independent researchers like me to assess whether polygraph programs appear to institutionalize bias, remains unreleased. This governmental nontransparency featured in a national investigative series. The government was silent in the face of this public pressure, and still refused to hand over the data needed for my research.
In my work with McClatchy reporter Marisa Taylor on that series, I forked over multiple documents and sources establishing that the CIA Polygraph Division breaks the law and has lied to Congress about it. Those documents are now gone from the document cloud McClatchy had made them publically available on. What the series proved remains: the same federal government that enforces equal opportunity law on local and state-level agencies—including police agencies—doesn’t follow that law itself.
Those local and state-level police agencies don’t seem crazy about transparency and equal opportunity, either. In my work on the Justice Database, I repeatedly heard police leaders express anger at public perceptions that American police are biased—and at the same time, reluctance to disclose data that would let independent researchers test whether, when, and how police profiling and brutality coincide.
That reluctance sometimes turned to unprofessional lack of regard toward me. One major city police chief told me that, as an artist, I was law enforcement’s natural enemy. Others merely wanted to sleep with me. Kel suspects that law enforcement hacked his email and phone in retaliation for his work; I share similar suspicions. Finally, at the 2015 Major City Chiefs/Major County Sheriff’s Association Conference, Representative Michael McCaul (R-TX), Chairman of the House Homeland Security Committee had a packed room of America’s police leaders wildly applauding the due process-free drone assassination of American citizens. I looked around that room and realized that, if anyone ever pointed a gun at my head and said “national security,” no one would protect me.
As high as the price has been, none of my work has made a difference. Was I naive to believe that through hard work and collaborative truth-telling, I could help make my country and the world a safer, fairer place? That, “you will know the truth, and the truth will set you free” (John 8:32; CIA motto)?
Probably. FOIA appears to me now to be a massive resource capture. As transparency activists know and scholars like me have learned the hard way, you will not even get the processing notes on your own lost or ignored requests without suing. Professionally, that costs you as a young scholar: It looks adversarial to your colleagues in academia who don’t know the FOIA game.
Strategically, seeking data and documents through the front door of FOIA takes money, legal expertise, time, and attention. This is attention taken away from actual research. However unintentional, the current FOIA system is thus a way the government can slowly bleed its opponents who seek greater transparency in the public interest.
At the same time it’s capturing resources, FOIA lets agencies set the terms of the discourse. For example, instead of giving me the data I sought, the CIA released historical records on an unscientific, internal evaluation of their polygraph program that were not even of historical interest to me as a scholar specializing in this area. It was simply what they wanted to release to the public, as if FOIA were a public relations game.
I never got the data I requested. Previous research suggests federal polygraph programs may institutionalize bias in the field—but not under experimental conditions, which science shows often generate different results. This means the only way to check whether bias plagues polygraph programs is to get field data. And that means if federal polygraph programs violate equal opportunity law systematically, we might never know. Even though we do know that federal polygraphers have repeatedly violated it with apparent impunity.
This impunity reflects a pattern of double standards that defines the current legal and political regime. Others who kidnap and torture civilians are terrorists; American officials who planned the same crimes are pensioners. Small-town schools that remain segregated are racist; federal law enforcement agencies that deny recruits or fire employees on the basis of their sexuality or political beliefs are above the law. And people who release information the government wants released are ok; but people who release information the government wants kept secret are treated as criminals.
Sure, it’s a good thing that students can finally access the FOIA system for their research without being priced out of it from the start. But in my opinion, the larger context of the Obama Administration’s historic crackdown on freedom of the press—recently denounced by Reporters Without Borders as a “war on whistleblowers”— belies any narrative about progress in accountability and openness.
By letting police and intelligence agencies be the bottleneck in giving data on their own contested actions to the public, efforts like FOIA and the Justice Database keep true accountability future-tense. In my opinion, you don’t keep asking nicely for the data about what public employees and agencies do in your name. Unless you’re living in a police state, you already own the data.
So why not take it? Hacking, leaking, citizen data collection, and other possibilities abound. When you’re offered a choice between paying to sue (or otherwise beg) for data that the public owns to begin with, and going away quietly—you can fin
d another option. Just as, when you’re offered a choice between collaborating with a police state, and putting up with its abuse quietly—you can get on a plane.
And if you live in the U.S. and do policing, intelligence, or civil liberties work of any kind, it might be time to do just that.