In a long-running Freedom of Information Act (FOIA) case currently before Judge James Boasberg, on April 15, 2026, the Federal Bureau of Investigation (FBI) admitted in a court filing that, contrary to its May 2, 2019 claim to Cato that it had “no records” on the organization, the Bureau acknowledged that it had investigated Cato employees and the Institute itself.
What follows is how we got here and what it means in light of the ongoing congressional debate over whether or not to renew, modify, or kill the Foreign Intelligence Surveillance Act (FISA) Section 702 program and other statutorily unregulated FBI surveillance and investigative practices.
Background
In the early spring of 2019, and as part of a larger FOIA-driven effort to determine the extent of FBI surveillance of domestic civil society groups, I filed a FOIA with the Bureau seeking records mentioning the Cato Institute. On May 2, 2019, the Bureau responded, claiming it had no records on the Institute. Given that Cato scholars 1) routinely take positions at odds with federal law enforcement and intelligence agencies, 2) routinely communicate with persons outside the United States and engage in international travel themselves, and that 3) some Cato scholars reside outside the United States, I assessed that the FBI’s “no records” response was not credible and appealed the Bureau’s determination to the Justice Department’s Office of Information Policy (OIP).
On June 6, 2019, OIP not only affirmed the FBI’s “no records” response but also went even further, with then OIP Associate Chief of Administrative Appeals Christina D. Troiani stating:
Furthermore, I have determined that the FBI properly refused to confirm or deny the existence of any national security or foreign intelligence records responsive to your request because the existence or nonexistence of any such responsive records is currently and properly classified. See 5 U.S.C. § 552(b)(1). Please be advised that the Department Review Committee will determine whether the existence or nonexistence of this category of records should continue to be considered a classified fact. Additionally, the existence or nonexistence of any such responsive records is protected under the FOIA pursuant to 5 U.S.C. § 552(b)(3). This provision concerns matters specifically exempted from release by a statute other than the FOIA (in this instance, 50 U.S.C. § 3024(i)(1), which pertains to the National Security Act of 1947 and the Central Intelligence Agency Act of 1949).
Troiani’s “refused to confirm or deny” language is what’s known in legal parlance as a “Glomar response”—based on a long-infamous DC Circuit decision involving the CIA’s then-successful effort to avoid a yes-or-no response to whether it had used Howard Hughes’s Glomar Explorer deep-sea mining vessel to recover the sunken Soviet submarine K‑129 from the Pacific Ocean floor (it had but kept that fact secret until 2010).
The one thing I’ve learned in studying previous “Glomar response” cases is that the responses are, in fact, de facto acknowledgments that the activity at issue was or is real, and thus the records sought in connection with it do in fact exist. Accordingly, I waited until December 2019, filed a fresh FOIA seeking the same kinds of records, and, after the Bureau failed to produce any, Cato filed suit on November 17, 2020.
In the more than five years since, the Bureau has fought disclosure of records on Cato at every opportunity—but thanks to some key court rulings made possible by great FOIA litigation work by Loevy and Loevy of Chicago, the Bureau has released nearly 1,000 pages of previously “nonexistent” records on the Institute.
What it has not done is release the most explosive material at issue in this case—the actual investigative records on Cato itself and an as-yet undisclosed number of its employees—while continuing to invoke law enforcement and intelligence surveillance FOIA exemptions to keep those records secret.
When Did the FBI Target Cato, and for How Long?
On the basis of an account by a now-former Cato employee to me in the fall of 2019 about being interrogated at Cato by two FBI agents during the fall of 2012, during litigation, we told the Bureau to search for records from January 1, 2012, to December 11, 2019. The Bureau has never turned over any records regarding the former employee in question—who definitely traveled to a country of intense intelligence interest to the Bureau—despite being given the person’s name, portfolio, and other information that should’ve resulted in responsive records being produced.
Ironically for the Bureau, Christina Troiani’s letter of June 2019 gave me a critical clue about where potentially highly classified surveillance records on Cato or its employees might be located. In that letter, Troiani claimed that
the FBI searched both its automated and manual indices and Sentinel database, as well as ELSUR [electronic surveillance], for main and cross-reference files and located no responsive records.
In this context, ELSUR likely means wiretaps approved by an Article III court. But the ELSUR database is not the only place where highly sensitive electronic surveillance records reside.
I’ve previously written about the FBI’s SENTINEL case management system, but the results of another Cato FOIA to the Bureau revealed the existence of the SENTINEL GOLD portion of the FBI’s case-tracking system. SENTINEL itself contains information only up to the SECRET classification level. SENTINEL GOLD is where any TOP SECRET/SPECIAL COMPARTMENTED INFORMATION (TS/SCI) pertinent to a case is kept. Information at the TS/SCI level usually means communications intelligence (COMINT) or signals intelligence (SIGINT), which would likely include information referencing FISA Section 702 data on the target of the surveillance and/or criminal investigation.
The declaration filed with the court by Amie Marie Napier — who became the FBI’s Record/Information Dissemination Section (RIDS) Section Chief in September 2025 and whose career background is primarily in auditing and IT infrastructure administration rather than FOIA legal practice or substantive intelligence oversight, and who notes that this is her first declaration in this case — only references information classified at the SECRET level in connection with Cato. It makes no mention of SENTINEL GOLD or any other specific database by name, invoking instead a categorical FOIA exemption specifically designed to shield the identities of investigative databases from disclosure.
In light of Troiani’s invocation of 50 U.S.C. § 3024(i)(1) in her original Glomar—a provision protecting intelligence sources and methods regardless of classification level—I strongly suspect that in this court action the FBI has never searched the SENTINEL GOLD system for records connected to Cato, whether through negligence or with the intent to deceive Cato and the court, which is, at the moment, unknown.
On What Basis Were Cato or Its Employees Targeted?
With respect to the law enforcement exemption invocations, Napier said this in her declaration to the court:
Pursuant to 28 USC §§ 533, 534, and Executive Order 12,333 as implemented by the Attorney General’s Guidelines for Domestic FBI Operations (AGG-DOM) and 28 CFR § 0.85, the FBI is the primary investigative agency of the federal government with authority and responsibility to investigate all violations of federal law not exclusively assigned to another agency, to conduct investigations and activities to protect the United States and its people from terrorism and threats to national security, and further the foreign intelligence objectives of the United States. Under this investigative authority, the responsive records at issue here which consist of references to the Cato Institute within the investigations of other subjects, were compiled in furtherance of the FBI’s investigation of potential crimes alleged to have been committed by Cato Institute employees.
You will search the public record in vain to find any indictment, federal criminal charge, or prosecution of any current or former Cato Institute employee or any charge against the Institute itself for any violation of federal law.
Those null results are significant in light of Napier’s declaration.
The declaration explicitly states the records were compiled in furtherance of the FBI’s investigation of potential crimes alleged to have been committed by Cato Institute employees. Separately, the Bureau’s invocation of FOIA Exemption 7(A)—protecting pending law enforcement proceedings—asserts that those proceedings remain active and live as of the declaration date of April 14, 2026. These are two distinct but reinforcing problems: an active criminal investigation running in parallel with classified intelligence collection, both shielded from disclosure, both targeting a prominent First Amendment organization, with no public prosecutorial output to show for it.
So we now have a publicly filed, sworn declaration confirming an active, years-long FBI criminal investigation potentially targeting Cato employees—with zero public record of any resulting indictment, charge, or prosecution spanning what appears to be a timeframe that runs at minimum from before the original 2019 FOIA request through the present. That’s a potentially very long-running investigation of an IRS-recognized, prominent public policy organization engaged in First Amendment-protected activity that, as far as public records reflect, has produced nothing in the way of charges.
That combination—active 7(A) claim, no public prosecutorial output, and classified intelligence methods involved—is precisely the fact pattern that has historically characterized politically motivated surveillance operations conducted under color of law. The Church Committee documented that pattern extensively.
Cato will be flagging for the relevant congressional committees this baseless Bureau surveillance and investigative activity targeting the Institute and its employees as yet another example of why Executive branch powers in this area need to be sharply and permanently reigned in.
