An Infamous CIA Secrecy Argument Is Now Being Used by the NYPD
When the CIA joined Twitter earlier this year, this was their very first tweet:
We can neither confirm nor deny that this is our first tweet.
— CIA (@CIA) June 6, 2014
It was a fitting opening salvo, to be sure, but not everybody thought it was all that clever. Some saw it as a cheeky and even self-deprecating commentary on CIA secrecy. Others saw the joke as a little flip, partly because that phrase has become infamous as the quintessential, mealy-mouthed, more-than-a-little-infuriating government non-comment.
Many a reporter has been stymied by the "Glomar response," as it's known, since 1975, when it was first established as a permissible answer to a federal Freedom of Information Act request. (The backstory, as recounted in this Radiolab segment, involves a sunken Russian nuclear submarine, a Cold War pissing contest, and a company called "Global Marine" -- hence Glomar.)
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The justification behind a Glomar response is that, in some cases, simply confirming the existence of certain records would be enough to undermine government interests. If a reporter asked the CIA for any records, say, about a secret CIA time machine project, even acknowledging that there are records fitting that description might be enough to jeopardize secrecy in meaningful ways. Such records would also be indisputably awesome.
The dread Glomar has always been a dodge available to the feds but not to local police, who have wide latitude to deny access to records but generally, under a state freedom-of-information law, have to give some sort of reason for withholding them -- thus acknowledging their existence.
But a recent court ruling might bring the legal principle involved into New York State for the first time.
The case involves a Harlem-based imam, Talib Abdur-Rashid, who sued the city to find out whether he and his mosque had been under surveillance by the NYPD. As the Associated Press first reported in a Pulitzer Prize-winning series in 2011, Muslim groups as well as Arab and South Asian immigrant communities were for years targeted in a potentially illegal dragnet, one that penetrated mosques and aggressively monitored organizations and individuals based, in some cases, on constitutionally protected speech. (The NYPD initially denied this all rather flatly, and only admitted later that the demographics unit did indeed exist at one time. It has since reportedly been disbanded.)
In 2012, Abdur-Rashid demanded all records related to any investigation of him by the NYPD. Briefs flew back and forth. In February 2013, the department asked a judge to allow them to offer a "Glomar response," rather than refusing to release the records under New York's version of the Freedom of Information Act, which would normally require them to admit, at least, that such records exist.
Their argument (laid out in the brief below, which is food for thought for legal nerds) was that merely revealing whether or not Abdur-Rashid is -- or ever was -- being watched by the NYPD would disclose sensitive information about the department's investigative techniques. The department's lawyers admitted that it was an "issue of first impression," and that they were asking the judge to reach beyond state court precedent, essentially deciding the issue based on federal legal doctrine, which would normally have no bearing on a case in state court.
In a September ruling, the court accepted the NYPD's argument, a decision Abdur-Rashid's attorney, Omar Mohammedi, said he plans to appeal.
For now, though, we can confirm that the Glomar has come to New York.
Correction published 10/22/14: Owing to a reporting error, the original version of this article stated that the plaintiff in the suit, Imam Talib Abdur-Rashid, was one of 26 people whom Associated Press reporters Matt Apuzzo and Adam Goldman identified in their book, Enemies Within, as having been on a "watch list" maintained by the NYPD. The man the authors wrote about is in fact Tariq Abdur-Rashid. Talib Abdur-Rashid does not appear in Enemies Within. The above version of the story reflects the corrected text.
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