The FBI and All Its "Prohibited Files"

Guest Column by FBI Veteran F.X. Regan

Captain’s Log: I’m re-publishing with permission this Substack article by my friend F.X. Regan. I’ve been commenting on the topic of the new details about “Crossfire Hurricane” files placed under “Prohibited Access” in the FBI’s Sentinel electronic case file system. But my understanding in that regard is all second-hand information from sourçes that I trust because I know they worked with such materials in other matters.

F.X. Regan, on the other hand, was a senior FBI Official who had supervisory responsibility in areas where these issues presented themselves — long before the era of Crossfire Hurricane. As he states below, Sentinel came in as he was heading for the retirement door. But Sentinel simply replaced something already in place, and the functionality known as “Prohibited Access” wasn’t new. But, like anything titled “Prohibited Access,” you only knew about it if you knew about it. I’ve made a few minor edits as a consumer first which I think make a couple of paragraphs a bit easier to understand.

The FBI crisis de jour this week on social media are so-called “Prohibited Files” in the case management system. It started last week when Senator Chuck Grassley (who has been a staunch FBI critic for 50 years,) released a 2019 FBI Memo (Electronic Communication) where the FBI agent/author noted that some files he was seeking were “Prohibited Access.” These were files relating to the Crossfire Hurricane (CH) investigation (Russia Collusion,) specifically related to Nellie Ohr, who the Senate referred to the DOJ for a possible obstruction of Congress investigation. You can go down a serious rabbit hole if you don’t grasp the complexity of Crossfire Hurricane, so see the FBI Memo here .

Let’s start with some background. Although I spent 25 years at the FBI, I’ve been gone a decade so admittedly some things have changed. Especially from a technology standpoint. Having said that, I was there when the FBI went from paper files, to an initial automated case system, to the current system called “Sentinel.” Second - nothing here is classified.

One of J.Edgar Hoover’s legacies was creating a records system almost a hundred years ago that was far ahead of its time. While it has certainly been overcome by technology today, the system allowed an agent anywhere in the country to locate a relevant name, address or other data point in a file that had been indexed. Every field office and headquarters maintained an index card file system. When communications came into or went out of the office, agents “indexed” important information from the file by underling with a red or blue pencil. Red for subjects of investigations, blue for references. The location of the file/serial was recored on an index card.

Here’s a quick example: 91A-BS-1234-1. Say Joe Bagodonuts was the subject of an armed bank robbery investigation in Boston. He would be indexed in red into the file 91A (the designator for armed bank robbery,) BS (the designator for Boston,) 1234 (the file number) 1 - the first serial in the file. Say that later in the investigation an important witness was developed, Betty Bureau. She gets indexed into the same file as a reference (blue) on a later serial, made 17.

If an agent in Detroit wanted to know if there were any FBI files on Joe Bagodonuts or Betty Bureau, he could send a lead to every office (or headquarters) to check indices for them. A clerk in Boston (or a new agent, checking indices and responding to leads was something all new agents had to do,) would go the card file and see that Bagodonuts was a subject and Bureau was a reference, and could send the appropriate information, or serial to Detroit.

This system existed until the early ‘90s when the first automated case file system (ACS) came online. Even then, the paper files remained relevant because it would take decades to migrate all those paper files into ACS, and early versions of ACS were not word searchable.

Indexing is still relevant today because with literally billions of pages of information, a word search on for example “John Smith” is useless. Too much information is as worthless as no information. There are still rules about indexing related to privacy.

Let’s bring in the hidden files discussion.

Open investigations in the old days were kept on the squad in a circular file called a rotor. Closed files were kept in a room (or a floor or floors) in the field office or at FBIHQ. Informant files were kept in a secure room, where only a few people had access. You had to check out informant files. If it wasn't your informant, you had to have a good reason to check out the file. An especially sensitive file might be kept in the Special Agent in Charge’s office. Really sensitive files were kept in Mr. Hoover’s office.

Reportedly, many of those files were destroyed by Hoover’s longtime secretary Helen Gandy, but that’s another story.

You can see in the electronic case file age where security of files might be a problem. Most of the FBI’s 38,000 employees are extremely honorable people who don’t commit espionage or leak sensitive information to the media. But not all. Thus the FBI created “Restricted Access” and what was then known as “Silent Hit” designators. While I don’t know for sure, it sounds like the Silent Hit is now being called “Prohibited Access” — I’ve seen “Prohibited Files”. The major feature here is that a false negative is created when there is a search that “hits” on one of those files. Whoever is searching is told there is no file or reference to their query. That feature is not new.

Restricted Access means that when an employee runs a name or other information, they know a file or reference exists, they just can’t see it. But for security reasons, the FBI might not want just any employee to even know that a file exists, hence the “Silent Hit” feature. When that happened, a notice is sent somewhere (the head of the office, a security officer, the Security Division, or wherever was set up to receive the message when the “Silent Hit” was created,) advising something like, “Hey, Joe Blow in New York just ran Joe Bagodounts through indices.”

The notorious FBI traitor Robert Hanssen — head of FBI Counter-Intelligence who sold classified information to the Soviets for 20+ years — ran himself in indices many times to see if he was the subject of an espionage investigation. (He was.) I’d be shocked if every spy in the modern era everywhere didn’t do the same thing. The problem isn’t related just to spies running themselves. Anybody inside the organization inclined to commit espionage could check indices for hits related to subjects of intelligence or terrorism cases for money or other reasons. Ditto for employees inclined to leak information to the media.

So Restricted Access and Prohibited Access files make eminent sense to this old former agent. In fact, I’d be lying if I didn’t say I’m surprised by some of the reaction in the media and social media that, 1) some otherwise pretty smart people didn't think this was possible or a thing, and 2) that it’s inherently sinister.

Not everyone with an FBI credential or clearance should have access to everything, or even knowledge of everything being done by others. Hence the “Silent Hit” function.

Remember, this surfaced over a Crossfire Hurricane-related communication, so it’s automatically political. Both pro-Trump and anti-Trump factions can find an axe to grind with the notion that all files related the CH investigation were not accessible to FBI agents who were looking and had good reason to do so. In the case of the new Memo, it was WFO agents on a criminal squad who probably had limited (official) knowledge of CH at the time. Hence the frustration (see below.)

Some lawyers (including some I follow and admire,) and a lot of keyboard warriors are claiming the “Prohibited Access” ability thwarts what is known as “Brady.” This is the famous Supreme Court ruling that requires the government to turn over exculpatory information to a defendant. Critics this week claim if the FBI can’t find the information because it’s Prohibited, it can’t be turned over. Some are screeching that many cases are going to be overturned because of this.

This is nonsense. In my uninformed opinion, the number of Prohibited Access cases is probably very small. Almost all are intelligence cases that will never see the inside of a courtroom. And they are Prohibited for a good reason - national security. Second, even high profile criminal cases that do eventually involve prosecutions are assigned to case agents who highly likely have access to everything and know what’s in the Prohibited files. And know what’s important and know what has to be turned over under Brady.

Even in the Grassley Memo example here, there is so much known about CH and Nellie Ohr, the subject of the memo (rabbit hole alert,) its highly unlikely anything in the Prohibited file (this is 2019 remember) was novel or ground breaking. And since this was six years ago, I’m guessing most or all of the information was eventually released from Prohibited status. A complicating factor is this Grassley memo occurred during a turnover in the CH investigation from Special Counsel Mueller (who got the case in early 2017) back to the FBI. Mueller’s team was notorious for hiding information. Remember how twenty-seven phones assigned to Mueller were wiped before they were turned in? Why do you suppose that is?

[Ship — Andrew Weissmann says in his book that when Bill Barr was named Attorney General in early 2019, he knew the Mueller Special Counsel was going to come under investigation. That’s why they wrapped up their work and announced the Office would be closing in March 2019. Electronic devices were wiped clean, and the public now knows that some significant volume of Mueller SCO files were placed on “Prohibited Access” even though there was no operational need to do so. The only conclusion that can now be drawn until there is contrary information, is that Christopher Wray agreed to keep this secret.]

The FBI can be held accountable. Special Counsels that fade away cannot. Maybe in the future, Special Counsels should not have have “Prohibited Access” authority.

Does this mean everything is cool?

No.

Like everything in law enforcement and intelligence organizations, there needs to be guardrails. In the case of Restricted and Prohibited files, if the following does not exist (a lot probably does,) it needs to be enacted:

• When a case moves to the prosecutive phase - it needs to migrate from Prohibited.

• When a case is closed, it needs to migrate from Prohibited.

• When an Inspector General investigation is launched, the file needs to move.

• In “most cases” when Congress asks, at least portions of the file need to be made available. I can foresee examples where the Director or Deputy Director might have to brief a ranking member or an intelligence committee rather than blanket respond to every request (a lot of times from staffers) for files or information.

• A sufficient number of people in senior positions have to be aware of requests related to Prohibited access files. The Director and Deputy Director can’t be blindsided that a file was not acknowledged.

In summary, I think this Prohibited Access file story is a straw dog, and the more people learn about the system, the less concerned they should be.

Now on to getting Book 3 in my CJ Hawk - FBI Thriller series, WASHINGTON FIELD ready for publication.

www.fxregan.com

[In his retirement FXR has taken to writing fiction “loosely” based on some of his 30+ years experience in state and federal law enforcement. Supposedly there is a fat, balding former prosecutor who is set to be hero in a future book in the series.]