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Army: Freedom of Information Does Not Include Edward Snowden's Military File

A Freedom of Information Act request from The Atlantic Wire for the military records of NSA leaker Edward Snowden was "withheld in its entirety" by the Army, under an exemption allowing it to withhold information that could "reasonably be expected to interfere with enforcement proceedings." Experts question that decision.

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A Freedom of Information Act request from The Atlantic Wire for the military records of Edward Snowden was "withheld in its entirety" by the Department of the Army. Despite the public value of better understanding the NSA leaker's first stint as a government employee, the Army exercised a legal exemption allowing it to reserve information that could "reasonably be expected to interfere with enforcement proceedings." Experts question that decision.

Our initial request, sent on June 10, asked for "The military records of Edward Snowden, formerly employed by the United States Army, originally from Elizabeth City, North Carolina." At the time — and still today — not much was known about Snowden's time in the Army Reserve, during which he apparently sought a position with the special forces.

What little we do know comes thanks to a Guardian article on the same day, in which the paper's Spencer Ackerman reported that the Army had refused to release the service record without citing a reason. The Army did, however, share the tenure of his service and the reason for his discharge: "he broke both his legs in a training accident." And it revealed Snowden's birthday. Today, he turns 30. Yesterday, the Wire received a response to our request for the complete file. In it, Army Information Release Specialist Monique Wey Gilbert cited the seventh of the FOIA's nine exemptions. (The eighth, if you're wondering, is "information that concerns the supervision of financial institutions.")

It's not clear if charges have yet been filed against Snowden. (Update, 8:16 p.m.: They have, as of June 14.)  The Justice Department has repeatedly indicated that it plans to do so, and, during his interview with Charlie Rose, President Obama indicated that an investigation was "taking place," and that "the case has been referred to the DOJ" for that purpose.

Given that Snowden's military service lasted from May to September of 2004, according to the Army spokesman Ackerman spoke with, it's highly unlikely that it is conducting any enforcement action. Alex Abdo, staff attorney at the ACLU's National Security Project, told The Atlantic Wire by phone that the exemptionwas "not inconsistent with our experience" — but generally for those facing enforcement action by the military. The ACLU has seen information withheld under a 7(a) exemption, specifically in a case being investigated by the Army Criminal Investigation Division. Whether or not the Army withheld the information at the behest of the Department of Justice is unclear; a Justice spokesperson declined to comment.

That we know Snowden's period of service raises a question of its own. Under FOIA, the government is supposed to release any information that it possibly can. Clearly, the length of Snowden's enlistment is information that would be included in his personnel file and, therefore, should have been released under our request. "It's not supposed to withhold whole batches of documents just because some of it is withholdable," Abdo told us. "It's suprising that they're withholding everything."

Eugene Fidell, who teaches military justice at Yale Law School, agreed. "If they denied access to the entire record, en masse, I think that's problematic," Fidell told us by phone. He, too, had seen the exemption used in the past, but "not simply for personnel records." Fidell suggested that detailed records, which, for example, might explore a psychiatric condition or stigmatizing discharge, could be withheld under FOIA's sixth exemption. Even Snowden had a right to privacy, Fidell pointed out, ironic though it might be.

The FOIA process allows for an appeal of a withholding; the Army does so through its Initial Denial Authority. We plan to exercise that option in an effort to present as full a picture as possible of a man who left high school, then the Army, and then the NSA before he was supposed to.

This article is from the archive of our partner The Wire.