We're Suing the FBI For Records on Journalist Michael Hastings

We're Suing the FBI For Records on Journalist Michael Hastings
July 28, 2013

Does the FBI have any records on the late investigative journalist Michael Hastings? I don't know. But fellow FOIA terrorist Ryan Shapiro and I just filed a Freedom of Information Act lawsuit against the agency to find out. 

Hastings died in a tragic car accident in Los Angeles June 18 at the age of 33. Immediately after the news broke, I filed a FOIA request with the FBI for any records the agency maintained on the award-winning reporter, which is something I do whenever a public figure passes away (yes, I realize some people think that's weird). A week later, Shapiro, a doctoral candidate at Massachusetts Institute of Technology who specializes in FOIA research pertaining to the policing of dissent, also filed a request with the FBI for "any and all records that were prepared, received, transmitted, collected and/or maintained by the Federal Bureau of Investigation (FBI), the Terrorist Screening Center, the National Joint Terrorism Task Force, or any Joint Terrorism Task Force relating or referring to" Hastings. [I also filed FOIA requests with DHS and other government agencies for records on Hastings.]

The FBI, while acknowledging our records requests, failed to respond within the 20-working day time period with a determination as to whether the agency will comply as required by law. Nor has the FBI responded to Shapiro's expedited processing request. So we decided to litigate and Jeffrey Light, our Washington, DC-based FOIA attorney, has also filed a motion for summary judgment seeking expedited processing of our federal complaint. 

"By suing the FBI for failure to comply with the Freedom of Information Act, [we] hope to obtain records pertaining both to the unusual circumstances of Michael Hastings's death and to the broader issue of FBI surveillance of journalists and other critics of American national security policy," Shapiro said.

A few days after Hastings's death, his friend, Staff. Sgt. Joseph Biggs, told a local news station in Los Angeles that Hastings blind copied him on an email he sent a day before his death that said, "The Feds are interviewing my close friends and associates." The subject line of the email said, "FBI investigation, re: NSA."

The FBI issued a rare public statement denying Hastings was under investigation. “At no time was Michael Hastings under investigation by the FBI,” FBI spokeswoman Laura Eimiller said June 21, three days after Hastings's death. 

Given the nature of Hastings's investigative work and the revelations that have surfaced about the government's interest in journalists' sources it wouldn't come as a surprise to me if some agency was looking into Hastings's journalistic activities. Heck, I could relate. A couple of years ago, the FBI took the unprecedented step of sending a special agent out to the home of the brother of a high-value Guantanamo prisoner to interrogate him about what he told me during an interview and urged him to withdraw a Privacy Act request he signed authorizing the FBI to release all of his records to me. When I found out about it I filed a FOIA request for records about that interview. Six months later, I received three redacted pages and my name was all over the documents.

I knew Hastings and had spoken to him on several occasions over the past year about my Freedom of Information Act (FOIA) work. I told him I filed a request with the Pentagon and Army after reading an investigative story he reported for BuzzFeed in July 2012 on the "Auchwitz-like" conditions at a hospital in Afghanistan operated by the U.S. I was hoping to obtain government documents that would shed further light on the alleged cover-up Hastings wrote about pertaining to the investigation into the facility. My FOIA request is still open. 

I called him again a week later to tell him I was writing a story about him that I thought he would get a kick out of. I had just received a batch of documents from the Department of Homeland Security (DHS) related to the agency's surveillance of Occupy Wall Street. Within those documents were dozens of emails written by top DHS officials who went ballistic over a story Hastings wrote for Rolling Stone about the agency's surveillance of OWS. 

I read a couple of passages to him over the phone. 

"There's one from a woman named Caitlin Durkovich," I told him. "Says she's the chief of staff for the National Protection and Programs Directorate and Infrastructure Program. She says here. 'I think we should consider calling Hastings and help him understand our mission. Looks like she sent that right after your story came out. That's hilarious.'"

Hastings laughed. 

"Such bullshit," he said. "Nobody called me. I gave them plenty of time to respond to my questions."

"Oh man, there's another one here. Listen to this," I said. "I think she sent this one after your story went viral. It says, "I think we need to pick up the phone, and call Hastings. National security is his beat, but he can be provocative so we need to have a clear sey, I think she meant set, of t-p-s, assume that's talking points. Let's explain our mission, to include what FPS's [DHS's federal protective service's] role has been in OWS. And push back on the inaccuracies."

I wanted Hastings to give me a quote for my story but he wanted to read the documents first. I sent it to him. And as I reported, there weren't any inaccuracies in Hastings's story. DHS thought it could resolve its public relations nightmare by intimidating Hastings. They failed. Hastings discussed DHS's interest in his work on The Young Turks and was generous enough to credit my reporting. 

Perhaps the FBI doesn't have any records on Hastings. Regardless, I think Hastings would appreciate that Shapiro and I are trying to find out whether that is truly the case.