In the immediate aftermath of MH370’s disappearance, California attorney (and noted birther) Orly Taitz filed a FOIA request with the National Security Agency to find out what the organization had about the missing plane in its files. Unsurprisingly, the NSA wouldn’t say; they wouldn’t even confirm that they had a file at all. As grounds, they claimed that “FOIA does not apply to matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign relations…”
The NSA’s response presents an interesting logical puzzle. If the NSA doesn’t have any material relating to MH370, then surely it would not violate national defense or foreign relations to say so. So presumably the NSA does have such material. Yet in response to Taitz’s inquiry they specifically emphasize that they might not. While it’s hard to say for sure which is the case, it sure smells like the NSA has something they don’t want to talk about. (“Typically when the government does not have any records, it would respond to FOIA request attesting that there are no records in question,” Taitz writes.) If I had to guess, I’d hazard that it might have to do with the radar and signal-detection capabilities of the US and its allies in the area where MH370 disappeared.
In the spirit of Taitz’s inquiry, I recently submitted my own FOIA request to the FBI to see what would turn up. Two weeks ago, I received a reply. The FBI, too, said it could not turn over material to me, stating:
“The material you requested is located in an investigative file which is exempt from disclosure pursuant to 5 U.S.C. § 552 (b)(7)(A). 5 U.S.C. § 552 (b)(7)(A) exempts from disclosure:
records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information… could reasonably be expected to interfere with enforcement proceedings…”
Later in the same letter the FBI asserts that “this is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist.” So again we run into the same logical conundrum as with Taitz’s NSA reply. If we assume that, in order for its contents to be categorized as non-disclosable, the file had to exist, then I take this to mean that the FBI has an investigation open into the hijacking of MH370. This by itself doesn’t necessarily mean that the plane was taken by third parties rather than the captain; the FBI was involved in the investigation of EgyptAir flight 990, which was ultimately deemed (by the US) a case of pilot suicide. The fact that they are considering enforcement proceedings, however, suggests that they believe that there are entities out there in the world against whom such proceedings could be brought.