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The Holiday Friday Document Dump Signing Statement

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The Administration has, as expected, buried its signing statement for the Defense Authorization in a holiday Friday document dump.

Correction: As DDay corrects me, this is not yet the NDAA signing statement, which is still coming.

I’m actually fascinated by the way they’ve suggested that they consider some of the detainee provisions to violate separation of powers. They couch their objections in language explicitly referring to the restrictions on transferring Gitmo detainees. They then say there are other “similar” provisions to which they also object. But they don’t name those provisions!

I have previously announced that it is the policy of my Administration, and in the interests of promoting transparency in Government, to indicate when a bill presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of H.R. 2055 raise constitutional concerns.

In this bill, the Congress has once again included provisions that would bar the use of appropriated funds for transfers of Guantanamo detainees into the United States (section 8119 of Division A), as well as transfers to the custody or effective control of foreign countries unless specified conditions are met (section 8120 of Division A). These provisions are similar to others found in the National Defense Authorization Act for Fiscal Year 2012. My Administration has repeatedly communicated my objections to these provisions, including my view that they could, under certain circumstances, violate constitutional separation of powers principles. In approving this bill, I reiterate the objections my Administration has raised regarding these provisions, my intent to interpret and apply them in a manner that avoids constitutional conflicts, and the promise that my Administration will continue to work towards their repeal. [my emphasis]

Now, in its veto threat capitulation, the Administration emphasized the uncertainty the bill (now law) presents for counterterrorism professionals.

While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country’s strength.

[snip]

As a result of these changes, we have concluded that the language does not challenge or constrain the President’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the President’s senior advisors will not recommend a veto.  However, if in the process of implementing this law we determine that it will negatively impact our counterterrorism professionals and undercut our commitment to the rule of law, we expect that the authors of these provisions will work quickly and tirelessly to correct these problems.

And frankly, I think the Administration is absolutely right to be concerned about the way these provisions–particularly, the presumptive military detention for some alleged terrorists–will screw up FBI’s efforts to investigate and capture terrorists.

But rather than explicitly focusing on this problem in the signing statement in the same way they did in the veto threat withdrawal, they simply invoke provisions similar to the Gitmo transfer restrictions, without naming them.

Not only is this a missed opportunity to make a strong defense of our civilian counterterrorism efforts–which have been far more successful than military commissions. But it leaves open the possibility that the Administration’s biggest objection isn’t about presumptive military detention but other limits on executive power.

It is par for the course for the Administration to keep secret which provisions it intends to “apply in a manner that avoids constitutional conflicts” even while celebrating its own “transparency.”

Mitch McConnell’s Greatest Fear: DOJ Proved Him Wrong for 5% of the Cost

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When the Obama Administration charged two Iraqis on al Qaeda related charges in Bowling Green, KY, Mitch McConnell wrote an op-ed wailing about all the fearful things that could happen as a result.

In short, these two are not common criminals who should be provided all the rights and privileges of American citizens. They are enemy combatants who should be transferred to the military detention facility at Guantanamo Bay, Cuba, where they can be interrogated, detained, and brought to justice.

I commend the skill and professionalism of law enforcement and prosecutors for apprehending these terrorists and preventing further violence on our troops. And yes, it is possible to simply try them as common criminals in a civilian court. But after Congress created a $200-million, state-of-the-art facility in Guantanamo Bay precisely to handle foreign fighters like them, why would we want to? It simply makes no sense to saddle Kentuckians with the security and logistical costs associated with ensuring the safety of our residents during a civilian trial.

[snip]

Trying these terrorists in a civilian courtroom could also risk compromising classified information used as evidence in the trial. That too has happened before in trials of this sort—and the Justice Department has already said that they expect the use of classified information in this case.

[snip]

And what happens if these detainees are acquitted, as nearly happened with Ahmed Ghailani?

[snip]

Unlike the Attorney General, Eric Holder, who believes that our “most effective terror-fighting weapon” is our court system, the good people of Kentucky know that our military is what keeps us safe. Our men and women in uniform have sacrificed everything to preserve our freedom and our rights as Americans.

Today, one of the two, Waad Ramadan Alwan, pleaded guilty to all charges against him.

Alwan, 30, a former resident of Iraq, pleaded guilty to all counts of a 23-count indictment charging him with conspiracy to kill U.S. nationals abroad; conspiracy to use a weapon of mass destruction (explosives) against U.S. nationals abroad; distributing information on the manufacture and use of improvised explosive devices (IEDs); attempting to provide material support to terrorists and to al Qaeda in Iraq; as well as conspiracy to transfer, possess and export Stinger missiles. Alwan was indicted by a federal grand jury in Bowling Green, Ky., on May 26, 2011.

Alwan faces a maximum sentence of life in prison under the sentencing guidelines and a mandatory minimum of 25 years in prison.

Presumably, Alwan will testify against his co-defendant, Mohanad Shareef Hammadi under the kind of cooperation agreement not readily available at Gitmo.

Thus far, the citizens of KY have only had to pay for security for a few hearings (if my experience at a hearing for the much more dangerous Umar Farouk Abdulmutallab is any indication, the additional security amounted to a few more burly guards). Alwan released no classified information. He plead guilty without even a trial.

In short, at least for Alwan, McConnell’s fear-mongering proved to be totally baseless.

And rather than spend the $400,000 we would have spent to house Alwan for six months at Gitmo–with similar amounts to be expected for the length of his potential life sentence–we have probably spent $20,000 to house him, even assuming SuperMax levels of security (which Abdulmutallab, at a low security prison, presumably didn’t have). Why was Mitch afraid of saving $380,000?

More importantly, why was Mitch so afraid of this typical result, in which a terrorism suspect pleads guilty before trial?

The Government Continues To Classify WikiLeaks Cables to Cover Up Their Torture Cover Up

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The government has responded to ACLU’s FOIA for a bunch of WikiLeaks cables by releasing redacted versions of just 11 of the 23 cables they FOIAed (I’ve copied, ACLU’s inventory of what they got below the fold).

Some of their redactions are unsurprising–details that show officials from other governments sucking up to the US. But some of the redactions clearly serve only to “hide” details of the government’s own cover up of its torture program. For example, consider  this passage, which is part of a substantial redaction in the FOIA release.

Meanwhile, the Embassy has been involved in DOJ-led talks to have Zaragoza – who attended the April 16 press conference – lead a four-person team of GOS officials to Washington for a possible meeting with U.S. Deputy AG David Ogden or AG Eric Holder during the week of May 18. Zaragoza’s wife, who is Conde Pumpido’s chief of staff, would reportedly be one of the four.

The passage only describes internal discussions between Embassy personnel in Spain and DOJ; there’s no mention of any Spanish actions or statements.

Yet it’s tremendously damaging to the Obama Administration because it explains how discussions between the US and Spain got from this April 1, 2009 suggestion Chief Prosecutor Javier Zaragoza made (this is also redacted but could easily be claimed as one of those embarrassing exchanges with a foreign government official).

Zaragoza noted that Spain would not be able to claim jurisdiction in the case if the USG opened its own investigation, which he much preferred as the best way forward and described as “the only way out” for the USG.

To Obama’s April 16 assurances there would be no prosecutions for torture, to Eric Holder’s August 24 announcement (in the wake of the OPR Report, which was itself an investigation) of the John Durham investigation. In other words, the redacted paragraph provides key details showing that Spanish legal representatives met with DOJ as DOJ decided to launch an investigation that couldn’t seem to find a crime in years of torture evidence.

Similarly, this entire cable was withheld, including this passage which records only what the US Deputy Chief of Mission said to Germany’s Deputy National Security Adviser (so again, it doesn’t show anything embarrassing the Germans did).

In a February 6 discussion with German Deputy National Security Adviser Rolf Nikel, the DCM reiterated our strong concerns about the possible issuance of international arrest warrants in the al-Masri case. The DCM noted that the reports in the German media of the discussion on the issue between the Secretary and FM Steinmeier in Washington were not accurate, in that the media reports suggest the USG was not troubled by developments in the al-Masri case.

But, as I noted in this post, the passage appears to show Condi using her German counterpart to create the appearance that she had no concerns about German subpoenas.

Now, of course, this evidence of our government’s efforts to cover up their own torture isn’t really hidden. But so long as the government maintains that it remains classified, no one can use it–say, in a legal proceeding–to show high level obstruction of our own duty to investigate and prosecute this torture.

Read more →

Eric Holder, Indefinitely Detained by DOD?

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The most shocking phrase in the Senate’s Defense Authorization detainee provisions to me was not the language affirming indefinite detention. That language simply affirms and possibly narrows the status quo. Rather, it was this language purporting to strike a “balance” between military and civilian detention for alleged terrorists by offering the Secretary of Defense the option of waiving military custody for terrorist detainees.

The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) [mandating military custody of terrorism detainees] if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

The presumption of military detention is bad enough. But to codify that the Defense Secretary would not even consult with DOJ on this front was shocking. After all, there is no reason any of these people–Defense Secretary, DNI, or Secretary of State–would know about a terrorist suspect captured in the US. They certainly wouldn’t know the investigation and prosecution strategies. Yet, the language passed last Thursday would not only allow the Defense Secretary to bypass DOJ as a default, but wouldn’t even require the Defense Secretary to ask whether it’s a good idea to move a suspect into DOD custody.

It effectively makes civilian prosecutors supplicants to the military bureaucracy to be allowed to do their work. And it’s particularly troubling given all the Bush-era instances in which FBI’s experts on al Qaeda were prevented from using that expertise to question detainees so Cheney’s torturers could torture them instead.

And the language in the Senate bill is actually more restrictive than the equivalent language in the House equivalent, which simply gives the Secretary of Defense input on civilian prosecution decisions.

SEC. 1042. REQUIREMENT FOR DEPARTMENT OF JUSTICE CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

(a) IN GENERAL.—Before any officer or employee of the Department of Justice institutes any prosecution of an alien in a United States district court for a terrorist offense, the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division, shall consult with the Director of National Intelligence and the Secretary of Defense about—

(1) whether the prosecution should take place in a United States district court or before a military commission under chapter 47A of title 10, United States Code; and

(2) whether the individual should be transferred into military custody for purposes of intelligence interviews.

Whereas in May, crazy House Republicans wanted to give the Secretary of Defense veto power over civilian prosecutions, on Thursday the Senate voted to take the Attorney General out of discussions over whether civilian prosecutions are better than military detention altogether.

And yet, of all the Administration complaints about these provisions–John Brennan, David Petraeus, James Clapper, Leon Panetta–Robert Mueller is the only one who spoke from DOJ [Update: National Security Division head Lisa Monaco spoke at the ABA National Security conference]. Unless I missed it, Eric Holder didn’t issue a statement. And it was only after the bill passed the Senate that some anonymous DOJ official released a comprehensive explanation of why this is such a bad idea Read more →

This FOIA Request Will Self-Destruct in 10 Seconds

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National Security Archive has an update on DOJ’s efforts to limit FOIA in the guise of transparency (or, potentially, simply admit what they’ve been doing for some time). It describes some of the other crummy things DOJ is trying to do (including describing online news as not-news).

One of those is to introduce a loophole allowing DOJ to destroy records.

The Department of Justice’s  regulations also include a provision to allow the destruction of records. While the law currently states that “Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA,” the Department of Justice wants to change the wording of this regulation to “Records that are identified as responsive to a request will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.” This narrows the scope of an agency’s obligation to preserve records and grants it the authority to destroy records that are the subject of a pending request but not “identified as responsive to a request,” which only the agency would be responsible for determining. This proposal runs counter to the intent of the FOIA and would allow agencies to place records that may have been improperly withheld beyond judicial review. [emphasis original]

Hmm. Back when we consulted Ed Meese on how to handle FOIAs of stuff like ongoing investigations, informants, and that old grab bag of classified intelligence, here’s how he said DOJ would respond:

Where an exclusion is employed, the agency is legally empowered to “treat” the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request “could not be located” — most rationally and fairly implements an exclusion’s effect.

In other words, material that falls under these exclusions are “not subject to the FOIA at all.”

Now put these two together: If something falls under an exclusion, it is deemed not-responsive to a request. And DOJ now says it is allowed to destroy records so long as they are not responsive to a request. Ergo, DOJ is now saying that if you request information about an investigation into yourself (or an informant or a broad range of classified intelligence information), they can first lie and say they don’t have those records, and the quickly destroy them, in case a judge deems them responsive after all.

If Gun Walking Is Wrong, Why Isn’t Nuclear Blueprint Walking?

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In his statement before the Senate Judiciary Committee today, Attorney General Holder tried to stave off questions about Fast and Furious by asserting that “gun walking” is wrong.

I want to be clear: any instance of so-called “gun walking” is unacceptable.   Regrettably, this tactic was used as part of Fast and Furious, which was launched to combat gun trafficking and violence on our Southwest Border.   This operation was flawed in concept, as well as in execution.   And, unfortunately, we will feel its effects for years to come as guns that were lost during this operation continue to show up at crimes scenes both here and in Mexico.   This should never have happened.   And it must never happen again.

It’s a statement he repeated a number of times during the hearing.

The emphasis on the problems with the technique of letting illegal guns pass into Mexico to allow the ATF to trace straw buyers represents a shift in the way Democrats are dealing with the Fast and Furious scandal by looking at similar efforts made under Attorney General Mukasey.

For example, to undercut Darrell Issa’s efforts on Oversight, Elijah Cummings has asked him to include the earlier instances under Mukasey.

A briefing paper prepared for Attorney General Michael Mukasey during the Bush administration in 2007 outlined failed attempts by federal agents to track illicitly purchased guns across the border into Mexico and stressed the need for U.S. and Mexican law enforcement officials to work together on such efforts using a tactic that now is generating controversy.The information contained in one paragraph of a lengthy Nov. 16, 2007, document marks the first known instance of an attorney general being given information about the tactic known as “gun-walking.” It since has become controversial amid a probe by congressional Republicans criticizing the Bureau of Alcohol, Tobacco, Firearms and Explosives for using it during the Obama administration in an arms-trafficking investigation called Operation Fast and Furious that focused on several Phoenix-area gun shop

[snip]

Maryland Rep. Elijah Cummings, top Democrat on the House Oversight and Government Reform Committee, wrote to the panel’s Republican chairman, Darrell Issa of California, asking that he call Mukasey to testify about his knowledge of the program.

“Given the significant questions raised by the disclosures in these documents, our committee’s investigation will not be viewed as credible, even-handed, or complete unless we hear directly from Attorney General Mukasey,” Cummings wrote.

It’s nice our elected officials are coming to the conclusion that it’s not a good idea to intentionally deal guns directly to people with ties to drug cartels.

But then why is Eric Holder’s DOJ prosecuting Jeff Sterling for allegedly exposing CIA’s practice of dealing nuclear blueprints to Iran (while, at the same time, alerting them to the flaws in those blueprints designed to sabotage their nuclear program)?

After all, if selling guns to cartel members presents unacceptably high possibility for unintended consequences, doesn’t passing on nuclear blueprints to Iran present an even greater risk?

And if that’s true, and if DOJ agrees that the ATF officers who exposed this program are whistleblowers, then doesn’t it follow that Sterling allegedly was, too?

If, as the Attorney General himself maintains, Fast and Furious was “flawed in concept, as well as in execution,” then what distinguishes it from Merlin?

Richard Blumenthal Asks Eric Holder Where the Foreclosure Prosecutions Are

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It took until Richard Blumenthal’s turn in Eric Holder’s appearance before the Senate Judiciary Committee today before Holder got asked about foreclosure fraud. Blumenthal generously suggested that, “I know the foreclosure crisis is on your agenda,” and then asked if we’ll ever see a prosecution on robosigning and other fraud.

Holder responded, at first, by pointing to states Attorney Generals, claiming they are conducting investigations. I do hope he’s thinking of Eric Schneiderman, Beau Biden, and Catherine Cortez Masto, because the ones working on the settlement are pointedly avoiding any real investigation. Holder then further dodged, suggesting DOJ might find other ways–like civil suits–to hold these banks accountable.

Finally, and perhaps most interesting, Bluementhal asked why DOJ had not intervened in the Bibby, Donnelly v. Wells Fargo suit, a whistleblower suit against Wells Fargo, BoA, Chase, Ally, and others for the illegal legal fees the banks charged homeowners, including veterans.

Holder hedged in response to that question, promising he’d find out who had made the decision not to intervene and the basis for the decision.

Unfortunately, Blumenthal pointedly avoided asking for a 30 day response to that request. So an explanation for why DOJ isn’t helping to sue banks for the illegal fees they’ve charged will probably come long after DOJ settles for those illegal fees.

Eric Holder: Torture Inquiries, Ted Stevens Prosecutorial Misconduct Investigations Almost Finished

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Eric Holder is testifying before the Senate Judiciary Committee right now. [watch here]

In response to two questions from Orrin Hatch, Eric Holder revealed that the John Durham investigation into torture and the Office of Public Responsibility investigation into the prosecutorial misconduct in the Ted Stevens case are both nearing their end.

While none of the Senators asked for Holder to make the results in the torture investigation public, Hatch, Pat Leahy, and DiFi all asked for the Stevens report to be made public.

Let me predict for them what that report will say: While problematic, the behavior of DOJ’s own does not merit punishment. Love, David Margolis.

DOJ Admits It Has Been “Lying” for 24 Years; Journalists Applaud

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I’m sort of mystified by yesterday’s reporting on the DOJ letter to Chuck Grassley and Pat Leahy regarding FOIA. Basically, the letter announced that DOJ has been “lying” on FOIA responses for 24 years, and that DOJ will only change its approach if it finds a good alternative. And yet report after report said DOJ had decided to drop their “new” approach to FOIA (TPM is the sole exception I saw, though the article’s title appears to reflect an earlier mistaken version).

As a reminder, the rule in question instructed FOIA respondents to respond to a FOIA request on ongoing investigations, informants, and classified foreign intelligence information as if the information didn’t exist.

(2) When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.

The letter everyone is celebrating says this about DOJ’s FOIA practice over the last 24 years.

Since 1987, the Department has handled records excluded under [FOIA’s Section 552(c)] according to guidance issued by Attorney General Meese. The Meese Guidelines provided, among other things, that where the only records responsive to a request were excluded from FOIA by statute, “a requester can properly be advised in such a situation that ‘there exist no records responsive to your FOIA request,'” and that agencies must ensure that its FOIA responses to requests that involve exclusions and those that do not involve exclusions “are consistent throughout, so that no telling inferences can be drawn by requesters.” The logic is simple: When a citizen makes a request pursuant to FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA: where the only records that exist are not subject to the FOIA, the statement that “there exist no records responsive to your FOIA request is wholly accurate. These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.[my emphasis]

This paragraph makes it clear that the practice “proposed” in the “new” rule is actually the practice DOJ has followed for 24 years.

Here’s the language from the Meese Guidelines, which makes it clear DOJ has not been using Glomar’s “We can neither confirm nor deny” language for these exclusions–as some of the reports on this yesterday claimed–but has instead been denying any records exist.

In addition to expanding the protective scope of the FOIA’s principal law enforcement exemptions, the FOIA Reform Act creates an entirely new mechanism for protecting certain especially sensitive law enforcement matters, under new subsection (c) of the FOIA. These three new special protection provisions, referred to as record “exclusions,” now expressly authorize federal law enforcement agencies, for certain especially sensitive records under certain specified circumstances, to “treat the records as not subject to the requirements of [the FOIA].” 5 U.S.C. � 552(c)(1), (c)(2), (c)(3), as enacted by Pub. L. No. 99-570, � 1802 (1986). In other words, an agency applying an exclusion in response to a FOIA request will respond to the request as if the excluded records did not exist.

[snip]

To be sure, the protection afforded through “Glomarization” can adequately shield sensitive abstract facts in certain categorically defined situations. However, the “Glomarization” principle, by its nature, operates necessarily on the basis of (and openly connected with) specified FOIA exemptions, and it is limited in such a way as to mask only an abstract fact related to a defined record category. See FOIA Update, Spring 1983, at 5; see, e.g., FOIA Update, Spring 1986, at 2. Thus, mere “Glomarization” simply is inadequate to guard against the harm caused by the very invocation of a particular exemption, nor is it capable of being applied realistically where the “category” of threatening requests can be as broad as, in effect, “all FOIA requests seeking records on named persons or entities.” It is precisely because “Glomarization” inadequately protects against the particular harms in question that the more delicate exclusion mechanism, which affords a higher level of protection, sometimes must be employed.(47)

By the same token, the utilization of the exclusion mechanism requires extremely careful attention on the part of agency personnel, lest it be undermined, even indirectly, by the form or substance of an agency’s actions. Agencies should pay particular attention to the phrasing of their FOIA-response communications in light of the new exclusions. Where an exclusion is employed, the agency is legally empowered to “treat” the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request “could not be located” — most rationally and fairly implements an exclusion’s effect.

The DOJ letter, combined with the Meese Guidelines, makes it clear: DOJ has been responding for FOIAs throughout that period with the misleading language. There is nothing “new” about the practice whatsoever.

DOJ’s prior use of this practice should be clear from the history of this rule–which was basically rushed through as Judge Cormac Carney’s ruling made it clear that the FBI had used this practice in a response to CAIR. Contrary to DOJ’s claim that it tried to push through this rule out of some concern for transparency, they only drafted it once it became clear their long-standing practice would be exposed in the Carney ruling.

And as I noted yesterday, while DOJ has dropped the language formalizing this from the rule…

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures, and we will not include that provision when the Department issues final regulations.

…it has not promised to drop the practice. On the contrary, it says it will only change the practice–the practice it has used for the last 24 years–if it can find something that works as well.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

And why should it drop the practice? It doesn’t need a rule to authorize it, it already has authority in the FOIA amendment passed in 1986, which the 9th Circuit referenced in its opinion on the Carney ruling just this spring with no complaint.

In addition, Congress added section 552(c) to the FOIA in 1986 to allow an agency to “treat the records as not subject to the [FOIA] requirements” in three specific categories involving: (1) ongoing criminal investigations; (2) informant identities; and (3) classified foreign intelligence or international terrorism information. 5 U.S.C. § 552(c) (1)-(c)(3)4; see Benavides v. Drug Enforcement Admin., 968 F.2d 1243, 1246-47 (D.C. Cir. 1992) (discussing the legislative history of the “three exclusions of § 552(c)”). Only subsection (c)(3) deals with classified information, while subsections (c)(1) and (c)(2) apply to law enforcement records. Therefore, plaintiffs’ contention that only classified information can be withheld under the FOIA is belied by the statute.

The 9th Circuit was not asked to review the constitutionality of this practice. But it certainly showed no discomfort with it. If the law endorses this practice and Appeals Courts have found no problem with it, what are the chances, really, that DOJ will change it substantially?

All yesterday’s letter did was announce that DOJ will once again not explicitly describe how it is applying exclusions–it will return to the practice it has followed for 24 years. Sure, it may find a new way to handle exclusions. But all we have now is a promise that it is considering doing so.

DOJ Lies about Its FOIA Lies

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Patrick Leahy just released a letter DOJ sent him and Chuck Grassley regarding DOJ’s effort to formalize their practice of lying in response to some FOIA requests. Now, Leahy claims the government has withdrawn its proposed rule–which I think overstates what DOJ has done.

I commend Attorney General Holder and the Obama administration for promptly withdrawing the Department’s proposed rule on the treatment of requests for sensitive law enforcement records under the Freedom of Information Act.  For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public’s right to know and government’s need to keep some information secret.  The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government. [my emphasis]

While the letter does say,

We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures [I think this refers to DOJ’s promise of transparency, but it’s not entirely clear], and we will not include that provision when the Department issues final regulations.

It also speaks conditionally of making changes to the practice itself.

Having now received a number of comments on the Department’s proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible.

[snip]

That reopened comment period has recently concluded, and the Department is now in the process of reviewing those submissions. We are also taking a fresh look internally to see if there are other options available to implement Section 552(e)’s requirements in a manner that preserves the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible. [my emphasis]

In other words, DOJ has only committed to taking the language about exclusions out of the rule, not to changing the practice on exclusions it has followed for 20 years. It’s only going to make a change in the practice if it can find some new practice that works as well.

And there’s reason to doubt DOJ’s overall good faith with this letter. That’s because they claim their approach to exclusions “never involved ‘lying’.”

While the approach has never involved “lying,” as some have suggested, the Department believes that past practice could be made more transparent.

That’s an out and out “lie” (I’m guessing that DOJ thinks those scare quotes make “lie” mean something other than what we think it means). As Judge Cormac Carney laid out in his ruling on this practice, the government “lied” to him about what FBI documents existed on CAIR.

The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

And the letter’s claim that this process “never” involved “lying” is all the more suspect given that DOJ tells a “lie” in this letter. It says,

These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years.

But Meese’s memo envisioned judicial review.

Accordingly, it shall be the government’s standard litigation policy in the defense of FOIA lawsuits that wherever a FOIA plaintiff raises a distinct claim regarding the suspected use of an exclusion, the government routinely will submit an in camera declaration addressing that claim, one way or the other. Where an exclusion was in fact employed, the correctness of that action will be justified to the court. Where an exclusion was not in fact employed, the in camera declaration will simply state that fact, together with an explanation to the judge of why the very act of its submission and consideration by the court was necessary to mask whether that is or is not the case. [my emphasis]

DOJ, by “lying” to Carney (and probably a slew of other judges over the years) evaded any judicial review of its use of exclusions. DOJ was actually going beyond what even corrupt old Ed Meese laid out!

And then, if there were any doubt of DOJ’s bad faith here, there’s this:

As you know, the initial comment period on these regulations closed earlier this year, with no public comment on the provisions in question. As a result, however, of this Administration’s commitment to openness, the Department reopened the comment period on these regulations precisely so that it could receive additional input.

The reason they got no comments in the first period, of course, is that they snuck through the rule just before Carney would make his ruling public.

March 21, 2011: Government first issues its rule on lying in FOIA

March 30, 2011: The 9th rules that Carney may only release a redacted version of his opinion

April 20, 2011: Original end of comment period for rule

April 27, 2011: Carney releases his redacted opinion, including a link to the Ed Meese memo on which the government relied

That is, they only opened the second comment period because they got caught pulling a fast one, trying to push through the rule before the risks behind the rule became apparent.

Which is probably what they’re doing here.

Of course they have to change the rule now. That’s because every denial must now be assumed to be a “lie” which can only be exposed by litigating the issue. The rule is going to lead to a lot more FOIA lawsuits.

So in addition to assuming that they’re “lying” in response to FOIA requests, it’s probably safe to assume they’re misleading with their suggestion that because they’re going to take this practice out of their rule, they’re ending the practice.