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Their Eyes Are Watching Government: On Surveillance Art, the Art of Surveillance, Freedom of Information Act

April 21, 2016

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By Jessica Preis*

On February 5, 2016, journalist, filmmaker, and artist Laura Poitras opened an exhibit at the Whitney Museum titled Laura Poitras: Astro Noise, which will run through May 5, 2016. The exhibit invites visitors to contemplate the link between art and security. In addition to taking up the entirety of the new Whitney building’s eighth floor Hurst Family Galleries, the exhibit seeps into museumgoers consciousness due to its immersive nature. Poitras is one of the artist-activists, such as Hasan Elahi and Jenny Holzer who are part of a political-artistic movement that relies on tools such as the Freedom of Information Act, 5 U.S.C. § 552, to paint unconventional canvases.

Who is Laura Poitras?

Poitras is well known for her documentary work on National Security Agency whistleblower Edward Snowden (who has been charged with theft of government property, unauthorized communication of national defense information, and wilful communication of classified communications intelligence information to an unauthorized person) for which she earned an Academy Award and a Pulitzer Prize. In her exhibit at the Whitney, which stands in the heart of the Meatpacking District, Poitras aims for viewers to feel like they are one with art and surveillance. Her mission is eerily accomplished through sensational pieces where visitors watch videos of prisoner interrogations in Afghanistan, read redacted government documents, and listen to Poitras detail her experiences abroad. One of the most unnerving pieces, “Bed Down Location,” allows visitors to lay on their backs in a dark room and look up at the ceiling displaying the night sky as it appears over countries in the center of the war on terror, such as Yemen, Somalia and Pakistan. Once visitors leave the room, they disturbingly discover that while they were stargazing they were being monitored by an infrared camera. Additionally, they discover their electronic devices have been tracked throughout their visit after coming across a screen that lists code references to all of the digital devices that enter and exit the floor.

The artist was inspired by the Snowden archive and the United States surveillance she experienced after visiting Baghdad to document the United States military occupation. According to Poitras, following her international stint in Baghdad, she has been detained over 50 times while crossing the United States border after 2006.  As a result of her numerous detainments, Poitras’ exhibit focuses heavily on the hundreds of redacted government documents she requested after filing a Freedom of Information Act (“FOIA” or the “Act”) lawsuit in 2015 stemming from the watchdog observation she underwent. Poitras filed suit so she could know what type of information the government had amassed about her.  

What is the Freedom of Information Act?

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FOIA.gov

FOIA is a federal law passed in 1967 that allows for the public to request access to records of all federal agencies. It is considered “the law that keeps citizens in the know about their government.” Under FOIA, the federal agencies must disclose any information requested, unless it falls under one of the nine exemptions that protect personal privacy, national, security, or law enforcement matters. According to the United States Department of Justice, President Obama and the Department of Justice have called for agencies to be as open as possible in these requests. Additionally, the Office of Information Policy oversees agency compliance. Nonetheless, some argue that the stated goals of the Act do not operate in application.

According to Poitras’ attorney, David Sobel, who works for the Electronic Frontier Foundation (“the leading nonprofit organization defending civil liberties in the digital world”), typically  journalists may not rely on FOIA as an investigative tool due to long delays in responses. As reported by the Associated Press in 2014, there was “a backlog of unanswered requests” by the end of  2014 and when there was an actual response, the documents provided were heavily censored.

Moreover, Katherine Hawkins, a national security fellow at the advocate group, OpenTheGovernment.org explained the federal government greatly relies on various exemptionsto deny FOIA requests. Hawkins contended, “The very people who have the most to hide are deciding what to hide.”

Other Artists and Exhibits That Rely on FOIA

The Poitra’s work inspired, or made possible by FOIA, is but one example in an established practice of artists using political and government tools for sociocultural commentary.  In 2014, the Scottsdale Museum of Contemporary Art in Arizona opened an exhibit, “Covert Operations: Investigating the Known Unknowns” which united 13 artists including  Trevor Paglen, David Taylor, Hasan Elahi, and Jenny Holzer who, according to curator Claire C. Carter, have been trying “to make the invisible visible for the rest of us,” in the post-9/11 world. Paglen displayed Xeroxed copies of passport pages of Six CIA operatives who abducted the radical Egyptian cleric Abu Omar in Italy and held him without trial in Egypt for four years where he was interrogated and abused. Meanwhile, Taylor used photography as a tool to show the new “infrastructure” that arose after September 11th along the southwest border in the United States. In one of his photos he captured a homeland security agent standing over a metal case, which detects the footsteps of potential Mexico intruders through the use of electronic-seismic sensors.

Some artists have found inspiration from personal experiences. For example, Elahi, a multimedia artist who specializes in technology was placed on the government’s Terrorist Watchlist database after being falsely identified as an “Arab” man who plotted an explosive attack. He responded to the “Orwellian” surveillance by initiating the “Tracking Transience” project where he has uploaded his location on the Internet for over a decade along with other personal information like receipts.

Former CIA agents have commented about the movement. Richard Post, past president of the Arizona chapter of the Association of Former Intelligence Officers poignantly stated, “The fact that we have a group of very motivated citizens that are interested in trying to make sure that the government is trying to do the right thing for all of us in a way that’s in keeping with our national traditions and heritages and freedoms … (is) very healthy.” The conceptual artist, Holzer wholeheartedly agrees with Post’s statement.

Holzer has used text-based art as a medium throughout her entire career.  In 2004 she came up with the idea to reproduce heavily redacted government reports, called Redaction Paintings, because she wanted to “see secrets.” Holzer has an interesting process, she has silkscreened documents from sources like the National Security Archive and the Torture FOIA portion of the ACLU’s website. One of her works’, Enhanced Techniques 3, is described as handmade paper where redaction is molded into the material. In her piece DODDOACID, Holzer features a document she discovered in a 205-page investigation report detailing allegations that an an American soldier committed detainee abuse. In DODDOACID, she used oil on linen to depict a blacked out American handprint of a soldier who was accused of committing crimes in Iraq.

It appears Holzer believes that through paintings, people will not only have access to these important documents but will preserve them for the future. With politics playing an important part of the daily lives,  it is not surprising that artists around the world, not only in the United States are inspired to produce politically charged art that moves viewers emotionally while educating them about covert national and international affairs. The question remains outstanding as artists are eying the actions of government agencies, government is certainly taking a hard look at the work of the artists.

Postscript: CIA Art Collection

Interestingly enough, one federal agency’s, the Central Intelligence Agency  (the “CIA”), headquarters, in Langley, VA, houses a collection of modern art pieces not open to the public. When the Oregon-based artist Joby Barron learned of the CIA art collection, having discovered  a Taryn Simon photograph, which depicts two abstract paintings in the CIA headquarters, she wanted to know more.  Why does the CIA have these pieces, if it had others, and if the works of art were available to the public? She was inspired to begin an investigatory crusade to learn more and unearthed that the CIA has a cache of 29 abstract paintings it claims to use for intelligence training purposes. She found that the CIA held secret talks with an art collector by the name of Vincent Melzac who was an American businessman, the ex-CEO of Corcoran Gallery, a proprietor of beauty schools, and a racehorse breeder. Melzac also happened to have one of the most important private collections of the Washington Color School’s works. According to Barron, the CIA and Melzac supposedly agreed to some type of loan of the works.

In her research, Barron, like the artist-activists mentioned above, relied on FOIA but this time around not to create art but to compel the agency to share information about its art collection. She described the endeavor as a “cat-and-mouse game” and she was initially denied access to a list of paintings and photographs in the CIA’s possession. By 2014, she eventually received almost 100 pages of redacted information regarding the agency’s first meeting with Melzac. In February, Barron still had not been granted access to the complete list of artworks and questioned why the CIA is so secretive about these seemingly innocuous pieces that can only be seen by agency workers and family members.

The artist wants the public to have access to these works. She stated, “These paintings are valuable, museum quality, and part of our national treasure, paid for with public funds (I assume) and, as a citizen, I was denied access to them.” She has recreated the paintings, or what she imagines the paintings to look like in ¾ scale, which was most recently displayed in the exhibit Chasing Justice at the Contemporary Jewish Art Museum in San Francisco.

Another artist who collaborated in the Chasing Justice exhibit was Arnold Mesches. According to Mesches, the FBI robbed him of over 200 works in 1956, during the height of the Cold War. Some of the works taken were his paintings of Julius and Ethel Rosenberg, a couple executed for treason and espionage in 1953 because they were accused of providing atomic blueprints to the Soviets. Mesches himself was considered a “person of interest” by the FBI and was under surveillance for 26 years. He relied on FOIA to retrieve his 760-page file from the FBI, and thereafter started to create art out of the surveillance that took place during the Red Scare and beyond. In the FBI Files, Mesches created a collage of the actual pages from the file, newspaper clippings, photographs, paintings, drawings, and handwritten texts so as to create “contemporary illuminated Manuscripts.”

In conclusion, it is important that artists and citizens in general have the ability to access materials using FOIA despite the hurdles it oftentimes presents. Significantly, Barron called FOIA an “important tool for journalists and citizens to protect and defend.” She still hopes to visit Langley and see the CIA’s paintings in person.

Selected Sources:

*About the Author: Jessica Preis is a 3L at Benjamin N. Cardozo School of Law, working with Center for Art Law through the Cardozo Art Law Field Clinic. She was a staffer on the Arts and Entertainment Law Journal and is fascinated by Art Law and Criminal Law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

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