Sen. Chuck Grassley’s release last week of an FBI memorandum discussing the Bureau’s ability to render computerized records invisible to other agents raises huge constitutional and corruption concerns. On Monday, The Federalist analyzed the revelations from that recently declassified document, explaining that material coded “Prohibited Access” in the FBI’s Sentinel case management system will not appear in search results, meaning that users of Sentinel would not know that information relevant to their search even exists.
If Sentinel users do not know that relevant evidence exists, the DOJ cannot possibly provide exculpatory or impeachment evidence to criminal defendants or fulfill their discovery obligations in civil cases. Nor could the DOJ and FBI find all responsive documents for Freedom of Information Act requests, or in response to congressional inquiries or investigations by the inspector general. And the FBI cannot possibly properly investigate criminality if its agents do not even know of potentially relevant evidence.
From the scant evidence available to date, we know that these concerns are not merely hypothetical. Documents related to the Trump/Russia-collusion investigation were coded “Prohibited Access.” That coding prevented agents in the Washington Field Office from identifying potentially relevant evidence concerning whether Fusion GPS contractor Nellie Ohr lied to Congress about her role in the Crossfire Hurricane hoax.
We also know that the U.S. attorney screening material related to Ukraine corruption and the Biden family did not know that the FBI could render material invisible in Sentinel. Likewise, senior DOJ officials familiar with the investigation into the Russia collusion hoax had no knowledge of the “Prohibited Access” functionality. Whether those investigations were similarly stymied is currently unknown because there is so little we presently understand about the FBI’s use of “Prohibited Access.”
Likewise, whether — and if so, how frequently — the DOJ violated its obligation to provide exculpatory and impeachment evidence to criminal defendants, or failed to meet discovery obligations, because of Sentinel’s “Prohibited Access” functionality, is a giant question mark. Whether files rendered invisible in Sentinel were likewise wrongfully withheld from Congress, the inspector general, or those submitting FOIA requests also remains unknown and will be until we get answers to some fundamental questions.
Here are the questions the FBI needs to answer:
When was the Prohibited Access function added to Sentinel? Who decided to add that functionality? Who approved that decision? And who was told of that decision?
Who could mark material Prohibited Access? What standard determines whether material is classified Prohibited Access versus Restricted Access? Who must approve the Prohibited Access designation? Who can see the existence of files designated Prohibited Access?
How long are materials maintained under the Prohibited Access designation? What happens if all the individuals with Prohibited Access to a file leave the Bureau? Can anyone see the existence of the file?
Are Prohibited Access materials ever deleted? Can Sentinel be audited to determine if documents have been deleted, and, if so, by whom? Can those documents be recovered?
Has an audit ever been conducted on Prohibited Access files? By whom? What were the results?
Can the FBI obtain a list of all Prohibited Access materials? How? Has the FBI obtained such a list? How many documents were logged as Prohibited Access? Has anyone reviewed those documents to ascertain whether they were relevant to any criminal or civil cases? Congressional or IG investigations? FOIA requests?
When someone searches for a term that appears in a Prohibited Access document and receives a message that indicates there are no responsive documents, does that trigger an alert to the agents working on the Prohibited Access case? If so, what steps are taken to ensure any relevant information hidden behind the Prohibited Access coding reaches the proper parties?
Do all FBI agents know about the Prohibited Access functionality? Is it in training material? Does the FBI’s Domestic Investigations Operations Guide cover Sentinel? Does Sentinel show the “Prohibited Access” coding as an option when entering a document? Have any agents expressed concerns over their inability to learn of the existence of relevant materials because of Prohibited Access?
When was the DOJ’s inspector general first alerted to the Prohibited Access functionality? By whom? What was the inspector general told?
What is the FBI’s procedure for searching Sentinel in response to requests from the DOJ for either criminal or civil cases? For FOIA cases? In response to congressional inquiries? In response to requests from the inspector general?
These are merely the general questions about Sentinel and the Prohibited Access functionality that need answering. How many more questions follow depends on the answers to these initial queries: If there were only a few cases or a few documents classified as Prohibited Access, the concerns will be much narrower. But if the FBI used Prohibited Access coding on a widespread basis, the ramifications will be enormous.
Jason Foster, the Founder and Chair of Empower Oversight, a nonprofit, nonpartisan organization dedicated to combat waste, fraud, and abuse both inside and outside government, concurred with this assessment, telling The Federalist:
“Making a digital record unsearchable effectively deletes it for all other FBI users and creates the potential to taint thousands of FBI investigations, much like the 1990s FBI crime lab scandal did. That scandal sparked decades of consequences, even as late as 2015 when a DOJ review found errors in FBI hair analysis testimony in dozens of death penalty cases. The implications here for the government’s constitutional obligations to disclose evidence could be staggering.”
Foster, whose Empower Oversight organization represented the IRS whistleblowers who exposed the political interference in the Hunter Biden investigation, added that the Prohibited Access “feature sounds like it creates a digital black hole where evidence vanishes to all but the select few who already know it exists. This echoes J. Edgar Hoover’s secret ‘Official and Confidential files’ that were kept under the direct physical control of only himself and his personal secretary, who destroyed many of them after his death.”
But as Foster told The Federalist, the “new FBI leadership has an opportunity and an obligation to come clean.” “There needs to be a comprehensive review of how many records are essentially locked in this secret digital vault and who holds the keys,” Foster stressed.
Yes, and the FBI can start by answering the questions detailed above.