The government recently revealed for the first time that federal agents maintained an open investigation of our client, Academy Award-winning documentary filmmaker Laura Poitras, for six years despite never finding any evidence that she committed a crime or was a threat to national security.
Coming up empty handed after Poitras had been subjected to dozens of border searches, the FBI finally closed the investigation, according to agency documents we obtained.
We’ve learned about this fishing expedition through documents we obtained in a Freedom of Information (FOIA) lawsuit filed on Poitras’s behalf to find out why she was constantly being stopped by federal agents during her travels. Border agents detained Poitras at airports over 50 times from 2006 to 2012. The detentions began after she directed and released documentary films about post-9/11 life in Iraq and Yemen that challenged the U.S. government’s narrative about the war on terror.
Poitras was subjected to hours of questioning, and had her belongings searched and notes seized at U.S. and international airports. Border agents once threatened to handcuff her when she tried to take notes during a stop.
On another occasion agents seized her electronic devices without a warrant —an increasingly common U.S. Customs and Border Patrol (CBP) practice in recent years. Her treatment is a clear example of the government abusing its vast surveillance power at the border.
Poitras filed her FOIA lawsuit in 2015 to find out not only why her detentions started in the first place, but also why they abruptly stopped in June 2012, coincidentally (or not) just two months after her detentions made national news. EFF’s suit forced the government last year to turn over 1,000 pages, some of which answered the first question: The government’s reasoning for making Poitras the target of an intelligence investigation was because they speculated she had foreknowledge of an ambush of American forces in Baghdad in 2004 in which a U.S. soldier was killed and others seriously wounded. Poitras has repeatedly denied the allegation. In addition, the government never sought her footage from that day, which shows she did not film an ambush.
The speculation was based on her mere presence with a film camera on a rooftop on a day of intense fighting. Documents turned over in the FOIA case showed that a journalist embedded with the military, John Bruning, believed Poitras had prior knowledge of the attack and kept quiet so she could film it, which would have been criminal. But Army investigators found no evidence supporting his claim. Furthermore, in April 2006—three months before Poitras’s detentions began—they said in a letter to the FBI that there was “no credible evidence” that she had committed any crime.
The redacted documents obtained by EFF reveal multiple new aspects of the investigation for the first time:
-- The government’s investigation into Poitras was classified as secret
-- A grand jury was convened in 2007
-- Poitras’s personal records were subpoenaed from multiple companies
-- FBI agents were sent to film screenings where Poitras participated in Q&As
Vast portions of the documents are redacted, so EFF is now challenging the government’s basis for continuing to withhold this information.
However, these documents still didn’t explain why the detentions stopped in 2012. It wasn’t until after we pointed out this missing information that the government turned over another six pages. These heavily redacted pages said, “no potential criminal violations or priority threats to national security warranting further investigation were identified.” Federal agents closed the investigation, according to an August 2012 declassified FBI report.
We now know that even though investigators determined in 2006 that there was no evidence Poitras had committed a crime, the FBI maintained a fishing expedition for another six years, finally closing the matter and giving up its efforts to find something it could use against Poitras after journalist Glenn Greenwald published an article about Poitras’ experiences and a group of documentary filmmakers submitted a petition to the Department of Homeland Security protesting her treatment. It’s concerning to think that these detentions may have continued indefinitely had they not been called out. The government’s use of border crossings as an opportunity to target a journalist for intelligence investigations is disturbing and wrong.
It’s particularly troubling in light of the exponential increase in warrantless searches and seizures of travelers’ digital devices in recent years—a fact that CBP touts on its website. According to CBP data, the agency conducted 14,993 electronic device searches in the first half of fiscal year 2017 alone, up from 8,503 searches during the entire 2015 fiscal year. These searches have ensnared tens of thousands of Americans from all walks of life, including other journalists, artists, students, former military personnel, engineers, and limousine drivers. In September, EFF and the ACLU filed a lawsuit on behalf of 11 travelers whose smartphones and laptops were searched at the U.S. border without a warrant or explanation.
Our digital devices contain massive amounts of information—including emails, texts, contact lists, photos, work documents, and medical or financial records—that can reveal sensitive details of our personal lives. The government should not be allowed to use border crossings as an opportunity to conduct fishing expeditions into our personal, private information. The Fourth Amendment requires border agents to have probable cause before seizing digital devices and to get a warrant before searching those devices.
There is still much we don’t know about how the government decides who to pull out of line and, increasingly, whose digital devices to seize and search. We are seeking additional documents in Poitras’ case and hope to shed more light on the government’s unjust and potentially chilling treatment of a journalist. And we hope our new lawsuit will force the government to start respecting constitutional rights at the border.