• Photographer arrested after 2008 protest wins ruling
• FBI sought to protect ‘confidential sources’
The FBI has lost a legal battle to prevent the disclosure of documents that could reveal the identity of two of its covert informants.
In highly unusual case Laura Sennett, a freelance photojournalist, has won a ruling from a district court that compels the FBI to provide her with documents that shed light on informants use by agents used in their investigation into a protest which resulted in damage to a hotel lobby in Washington.
The FBI launched its joint terrorism task force investigation days after anarchists protested a World Bank and International Monetary Fund meeting in the capital in April 2008.
Protesters stormed into the lobby of the Four Seasons Hotel around 2.30am, chanting slogans and throwing paint-filled balloons. Most of the criminal damage, including a broken window, was minor, although the hotel said a statue worth more than $200,000 was damaged.
Sennett had been tipped off about the protest and attended to take photographs. She believed the protesters planned to wake up the IMF delegates by making a commotion, and maintains she had no prior knowledge of their criminal intent. She did not enter the hotel lobby – choosing to photograph events from outside.
Both of the “confidential sources” cited in the court case were asked by the FBI to review surveillance footage of the protest, in order to help identify who was there. They identified a handful of activists as well as Sennett, who specialises in reporting grass-roots activism.
The FBI placed the photojournalist under surveillance before raiding her home with two-dozen armed law enforcement officials, who seized memory cards, hard drives and computer and camera equipment.
In an effort to find out more about why she was targeted, Sennett, 51, has been running a legal campaign to obtain information the bureau holds about her, using Freedom of Information Act (FOIA) requests.
She had so far been given more than 1,000 pages of FBI documents, which the Guardian has seen, but the bureau withheld key portions, claiming they fell under an exemption intended to protect the identity of “confidential sources”. That decision has been challenged in court by Sennett’s lawyers.
On Wednesday, district judge James E Boasberg sided with Sennett, ordering the FBI to release the contested documents, which all parties accept “could reasonably be expected to disclose the identity of a confidential source”.
The judge said that despite three attempts, the FBI had failed to convince him the sources would have inferred confidentiality from their interactions with agents.
Dan Metcalfe, who directed the Justice Department’s Office of Information and Privacy for more than 25 years before retiring in 2007, and has represented the FBI in dozens of similar cases, said it was “extremely rare” for the bureau to be forced to reveal the identity of a source.
“I can think of just a handful of cases at most in which the FBI has had to disclose potentially identifying information about a confidential source over the past 40 years,” he said.
The case, he said, was a significant blow for the FBI, which is very strongly opposed to revealing the identity of its sources, not least because doing so could discourage future informants from co-operating.
Metcalfe, now a law professor at the American University, said the solicitor general was highly unlikely to launch an appeal.
“I’ve read thousands and thousands of FOIA opinions,” he said. “I would put this in the top percentile for being analytically sound and written exceptionally well. Based upon the facts that one gleans from reading the opinion, this is an entirely correct outcome. I see little or no prospect for reversal on appeal.”
Mike German, a former FBI agent now with the Brennan Center for Justice at New York University, said he believed the two informants in the case, one of whom is said to have attended anti-capitalist meetings, could be private investigators.
“That is something that, having seen the documents, the judge may be less keen on keeping secret,” he said.
German said the fact an act of vandalism against the Four Seasons was even investigated by the FBI’s counter-terrorism teams followed a pattern of investigations into protest movements that are “more about suppressing dissent than investigating serious or violent crime”.
Detective Vincent Antignano, the federal marshall deputised to run the FBI’s investigation into the protest, said in a deposition conducted by Sennett’s legal team he believed Sennett was “like-minded like anarchists”, because she was among the 16 people captured on the hotel’s surveillance video.
“Everyone on that video is a suspect, so that’s the way I look at it,” he said, adding that he assumed she had similar views to the protesters captured in the video “who despise their government”.
Asked to elaborate, Antignano said that while he did not know Sennett’s dietary preference, “she could also be a vegan like … [people] who are against animal protests [sic] or animal research or won’t eat meat and stuff like that.”
Antignano had a broad notion of what behaviour constituted “terrorism”, saying that even an assault could fall within the definition.
“If you get assaulted and you believe you’ve been terrorised, then maybe that is terrorism,” he told Sennett’s lawyer.
The deposition was part of a separate case, in which Sennett’s lawyers sued the FBI for damages they said Sennett suffered as part of the raid on her home, which was led by Antignano.
Sennett said the raid was traumatising. Around two-dozen agents “yanked my 19-year-old son out of bed at gunpoint”, she said, before quizzing her about political books on her shelf and asking what “kind of an American” she was.
Sennet said she replied: “I’m a photographer.”
A freelancer whose images have appeared on CNN, MSNBC and the History Channel and in the Toronto Free Press, Sennett is adamant the FBI must have known she was present at the protest in a journalistic capacity. The FBI denied its agents knew of her occupation.
Sennett was never arrested or charged. She believes undercover police or moles within the protest group may have been responsible for giving the FBI details, including a cellphone number, which allowed agents to track her down.
Her lawyer, DC-based Jeffrey Light, argued that her status as a photojournalist should have barred agents from seizing her material, under a clause of the Privacy Protection Act.
However in that case a district court ruled against Sennett – a decision upheld in 2012 by the court of appeal, which found that while Sennett’s occupation provided “an innocent explanation” for her presence at the protest, the FBI, when it launched its inquiry, still had “probable cause” to believe she was part of a conspiracy to commit vandalism.
Wednesday’s court ruling by judge Boasberg, a Barack Obama appointee, was far more sympathetic to Sennett’s case.
Boasberg said the FBI had failed to provide sufficient proof that its informants “inferred that their communications with the bureau would remain confidential”. While acknowledging the FBI’s argument regarding preserving the confidentiality of informants – “one of source protection and empowerment of law-enforcement agencies” – Boasberg added: “That solicitude, however, can only carry the court so far.”
Light said he hoped Wednesday’s victory, which the government has 90 days to appeal, would take the capital’s protest community a step closer to discovering the identity of potential moles in their midst.
“People want to know who is spying on them,” he said.
Sennett said she hoped that by identification of the FBI’s informants in her case would discourage the bureau from conducting similar quasi-terrorist investigation in the future.
“I pursued this case because I don’t think anyone – activists, freelancers, bloggers – should have to go through what I went through.”
The US attorney’s office said it was reviewing the case but declined to offer further comment.
The FBI also declined a request for comment.
Paul Lewis in Washington
theguardian.com, Friday 2 May 2014 18.01 BST
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