SAN FRANCISCO (CN) - A federal judge Thursday indicated he believes the FBI improperly invoked exemptions to withhold files on its surveillance of Muslims.
The ACLU, the Asian Law Caucus and San Francisco Bay Guardian sued the FBI in 2010 under the Freedom of Information Act.
U.S. District Judge Richard Seeborg ruled in March that the FBI could not withhold thousands of files on its surveillance program based on a law-enforcement exemption.
During a hearing Thursday, Seeborg questioned the FBI's reasoning for continuing to withhold certain files based on attorney-client and deliberative process exemptions.
"The FBI may want to keep everything confidential," Seeborg said. "The question is if it's confidential under [attorney-client] privilege."
In a brief supporting its motion for summary judgment, the FBI identified several files it claims are exempt from disclosure under attorney-client privilege. The files include memos about recording confessions and interviews, advisories on using human sources, frequently asked questions on threat assessments, and emails about reporting requirements for the Intelligence Oversight Board.
"All of these documents incorporate guidance prepared or approved by FBI attorneys for FBI divisions," the bureau said in its supplemental brief.
But plaintiffs' attorney Angela Kleine said the " vetting " of documents by attorneys does not make the files privileged.
"If you really are relying on some privilege argument, I would need more information to give some indication that the materials were utilized for the purposes of legal advice on a particular case," Seeborg told the U.S. attorney in court.
U.S. Attorney Lynne Lee said it all depends on how one defines "client," and in this case, she argued, the client was all FBI agents as a whole.
"All of this information was meant to be kept confidential within the FBI," she said.
Lee said the FBI's draft version of frequently asked training questions should be withheld under the deliberative process exemption. She said the government must protect the "back and forth" between FBI employees and their training methods.
But Kleine said the draft FAQ cannot be withheld on that basis because it simply applied existing policies rather than being used to form a new policy, which would constitute a deliberative process.
"The deliberative process part of your argument, I don't see that as having any support," Seeborg said, adding that it appears no formal policy was developed using the document.
The plaintiffs agreed with the FBI in one area, and did not challenge the agency's decision to withhold the minimum scores FBI employees must get to pass a test on policies for using confidential human sources.
"Disclosure of the exact score required to pass these tests would cause harm to the FBI's training programs by failing to promote the very best agents who have a robust understanding of these subjects and failing to weed out those who simply wish to pass a test," the FBI wrote in its supplemental brief.
Documents obtained through the FOIA requests show the San Francisco FBI office targeted Bay Area mosques and compiled intelligence on innocuous activities of Muslims based solely on their religious beliefs, according to the ACLU.
The files also revealed that FBI training memos included claims that Muslims should be treated with suspicion, that Islam is inherently violent, and that religious practices and political activism by Muslims are signs of "increasing dangerousness," according to an ACLU report .
ACLU senior staff attorney Julia Harumi Mass said the civil liberties group has yet to receive files that Seeborg ordered released in March, but she was pleased to hear the judge appeared sympathetic to the request for information in the Thursday hearing.
"It's important the public have information about the FBI's activities to understand the scope of their surveillance tactics and understand if they are using race and religion to target people and whether that has a chilling effect on the right to worship freely and exercise other forms of expression," Mass said.
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