Lawyer sues after FBI foils his quest to learn if he was spied on

McClatchy Foreign StaffMarch 25, 2014 

A Virginia lawyer has filed a lawsuit in U.S. federal court in Washington, D.C., demanding records that might help him determine whether the FBI tapped into his law firm’s computers as part of an investigation into how he came to possess classified documents.

Kel McClanahan’s suit is the latest example of Americans turning to the Freedom of Information Act to find out whether they’ve been targeted by any of the government’s electronic surveillance programs. Last month, McClatchy reported that the National Security Agency has received thousands of requests from people who want to know whether the agency has swept up their cellphone and Internet usage. The NSA has rejected them all.

McClanahan began to suspect that the government was monitoring him after his computer and email account developed technical problems at the same time FBI agents were interviewing him about the classified documents. When his Internet provider did not respond to his requests for information, he suspected the FBI had served the company with an order for his records that federal law prohibited it from divulging.

The FBI rejected McClanahan’s requests for documents related to the matter, claiming that divulging them would interfere with an investigation, he said. Those rejections prompted last Friday’s filing.

McClanahan, the executive director of National Security Counselors, is no stranger to such suits. The organization, which specializes in acquiring and disseminating government documents related to national security issues, is involved in 17 other cases in three different courts.

But Friday’s suit was far from routine, both because it involves the possible targeting of McClanahan’s law firm as well as the British advocacy group Reprieve and because the case appears related to the little-known prosecution of Sharif Mobley, an American citizen who’s imprisoned in Yemen on suspicion of links to al Qaida.

The FBI did not respond to requests for comment.

In recounting the events that led up to the suit, McClanahan said the documents that had triggered the FBI’s interest included two that consisted of lists of articles that had been published in “Studies in Intelligence,” the CIA’s in-house journal. The two documents, which were related to another FOIA case McClanahan had filed against the CIA, had been faxed to him in December 2011, he said, and when he realized they hadn’t been officially released, he contacted a Justice Department lawyer involved in that case. A month later he met with two FBI agents who were investigating whether the documents contained classified information.

The agents asked him to delete the documents, he said, a request McClanahan refused, saying he’d do so only after he received copies of the documents that had any classified information redacted. The documents contained the titles and names of the authors of the articles.

The third document was a copy of an FBI account of an April 7, 2010, interview that U.S. agents had conducted with Mobley in Yemen. The FBI had given the document to the Yemeni government, and it was filed in its unredacted form in a Yemeni court on May 23, 2012. Mobley’s Yemeni lawyers passed the document to McClanahan, who’d been retained to handle all FOIA litigation related to the case.

McClanahan said he’d already received a copy of the document from the FBI as part of his work on Mobley’s behalf. That copy, however, had several passages blacked out, allegedly because they included sensitive national security information.

After comparing the redacted document with the uncensored copy, McClanahan concluded that the FBI censored the document it had given him simply to hide FBI misconduct and possible violations of the law, not because it revealed sensitive national security information.

Wanting to present the classified version to the court, McClanahan emailed a Department of Justice lawyer to ask how he should proceed. The lawyer informed the FBI and, on June 26, 2012, McClanahan again met with the same two FBI agents to discuss all three documents. McClanahan said the agents requested that he delete the files and, again, he declined, saying he’d do so only after he received official copies of them.

He received the redacted documents on Sept. 3, 2012, he said, as well as a request that he surrender his computer to the FBI so that it could wipe the documents from the hard drive. McClanahan said he’d be happy to delete the documents in the presence of FBI officials but that he was unwilling to turn over his computer.

On Nov. 5, 2012, McClanahan met with the FBI agents again. This time, the agents demanded that he allow them to search his office for other unspecified classified materials and again that he surrender his computer, he said. He again refused and told them they should get a subpoena if they wanted to read his email.

It was shortly before this meeting that McClanahan began to experience a series of unexplained technical problems with his email account, he said. His suspicions were raised particularly in light of questions the FBI agents had asked about his Internet service provider and his email correspondence.

Under a provision in the Electronic Communications Privacy Act, the FBI does not require a court order to obtain emails from an Internet provider that are older than 180 days, and after his Internet provider did not respond to his requests for information, McClanahan began to suspect that the FBI had issued an administrative subpoena for his records.

“I don’t have definitive proof that the FBI read my emails; I have, however, a large stack of circumstantial evidence that they did . . . specifically, unexplained problems with my email accounts only days before they showed up unannounced at my door to try to strong-arm me into giving them unrestricted access to my records,” he said. “It could be a huge coincidence . . . but it would be a huge coincidence.”

Over the next few months, McClanahan said, he had more meetings with FBI agents and federal prosecutors, until a Feb. 8, 2013, meeting at which one of the FBI agents handling his case proposed allowing him to delete the classified files from his computer in her office _ something he agreed to, since he’d already said he was willing to do so.

At that meeting, a government prosecutor told McClanahan that neither he nor the National Security Counselors group was the target of any ongoing investigations, he said.

McClanahan remained unconvinced, however, and he filed FOIA requests seeking anything related to the classified documents, all of which have been denied on the grounds that they would interfere with an ongoing investigation. In the lawsuit filed Friday, he’s asking the court to order the release of the records. The lawsuit also was filed on behalf of Cori Crider, a Reprieve lawyer who’s representing Mobley in the Yemen case. It was Crider who emailed McClanahan the unredacted FBI interview report.

McClanahan stressed that his suit isn’t aimed at challenging any monitoring of his email, but rather at gaining records regarding it. He said transparency in such matters was important to prevent abuse by American intelligence agencies.

“I know several FBI employees and officials closely _ they are my friends and I trust them. I know the FBI as a whole is a good establishment,” he said. “That being said, in my experience, some actors within the FBI . . . will take great offense to being beaten or defied, and they also have this tunnel vision _ that if you come within their sights, they will not let go of you, regardless of whether or not there is any reason for you to be there.”

Baron is a McClatchy special correspondent. Marisa Taylor contributed to this report from Washington.

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