91% Fewer Terrorist Sympathizers with Twice the Cash and 48% More Surveillance

A number of people have pointed to this report showing that the terrorist threat is grossly overblown. Not only does it show that Robert Mueller was overselling the risk of Muslim-American radicalization in the early days of of the War on Terror, and he and Janet Napolitano and Peter King and others continue to do so.

Twenty Muslim-Americans were indicted for violent terrorist plots in 2011, down from 26 the year before, bringing the total since 9/11 to 193, or just under 20 per year (see Figure 1). This number is not negligible — small numbers of Muslim-Americans continue to radicalize each year and plot violence. However, the rate of radicalization is far less than many feared in the aftermath of 9/11. In early 2003, for example, Robert Mueller, director of the Federal Bureau of Investigation, told Congress that “FBI investigations have revealed militant Islamics [sic] in the US. We strongly suspect that several hundred of these extremists are linked to al-Qaeda.”1 Fortunately, we have not seen violence on this scale.

[snip]

These and similar warnings have braced Americans for a possible upsurge in Muslim-American terrorism, which has not occurred. Instead, terrorist plots have decreased in each of the past two years, since the spike of cases in 2009. Threats remain: violent plots have not dwindled to zero, and revolutionary Islamist organizations overseas continue to call for Muslim-Americans to engage in violence. However, the number of Muslim-Americans who have responded to these calls continues to be tiny, when compared with the population of more than 2 million Muslims in the United States5 and when compared with the total level of violence in the United States, which was on track to register 14,000 murders in 2011.6

But, as Kevin Drum emphasized, the number of Muslim-Americans indicted for supporting terrorism–rather than engaging in a plot–has declined steadily over the last decade.

But while discussing how overblown the threat from Muslim-Americans in this country is, we ought to look at another report, too–perhaps this one, bragging about how much the FBI has changed in the last decade. Because along with visualizing how much more the FBI is spending–more than twice as much–it also notes the FBI has increased surveillance 48% over the decade (and that’s separate from the surveillance the NSA and Homeland Security and local law enforcement have put into place).

In other words, it’s not just that Muslim-American support for terrorism has declined. But it has declined even while we’re spending far more resources looking for it, and we’re just not finding it, much.

Lanny Breuer Rewards DOJ Lawyers for Winning Impunity for Prosecutorial Misconduct

I always like reading DOJ’s various expressions of their investigative and prosecutorial priorities–because they usually show a disinterest in prosecuting banksters, a thorough waste of resources on entrapping young Muslims, and an ongoing fondness for Anna Chapman.

Lanny Breuer’s choice of DOJ lawyers to recognize yesterday was, in some ways, an improvement over the trend. I’m happy to see prosecutors rewarded for taking down the “Lost Boy” website. Rather than fixating on Anna Chapman and entrapping young Muslims, Breuer recognized prosecutors who entrapped older Muslims who attempted to smuggle someone they believed to be a Taliban member into the US. And Breuer even celebrated the rare prosecution of a bankster, Lee Bentley Farkas.

And while Breuer’s multiple awards to people seemingly making it easier to shut down the InterToobz in the guise of IP violations concerns me, it’s this bit that I found disgusting.

The Assistant Attorney General’s Award for Distinguished Service was presented to Kirby Heller and Deborah Watson of the Criminal Division’s Appellate Section for their exceptional work in the successful appeal of sanctions imposed upon federal prosecutors in the case of Dr. Ali Shaygan.

Effectively, Lanny Breuer is rewarding two appellate section lawyers for winning an 11th Circuit Court decision overturning sanctions imposed on DOJ for gross prosecutorial misconduct. Breuer’s priorities, it seems, include ensuring that DOJ pays no price when it abuses its prosecutorial power.

The case goes back to February 2008, when Ali Shaygan was indicted for distributing controlled substances outside the scope of his medical practice; one charge tied that distribution to the death of one of Shaygan’s patients. Shaygan ended up hiring a defense team that included one attorney who had had a run-in with the prosecutors in his case. In addition, the lead prosecutor, Sean Paul Cronin, was admittedly buddies with the lead DEA Agent, Chris Wells. After Shaygan’s lawyers attempted (ultimately, successfully) to suppress a DEA interview with Shaygan on Miranda grounds, Cronin threatened the team.

AUSA Cronin warned David Markus, Shaygan’s lead attorney, that pursuing the suppression motion would result in a “seismic shift” in the case because “his agent,” Chris Wells, did not lie.

Nine months later, during the trial, one of the prosecution’s witnesses alluded in cross-examination that he had tapes of conversations–failed attempts to bribe Shaygan’s lawyer–at home.

During the cross-examination of Clendening on February 19, 2009, Shaygan’s counsel, Markus, asked Clendening if he recalled a telephone conversation in which Clendening told Markus that he would have to pay him for his testimony, and Clendening responded, “No. I got it on a recording at my house.”

This revelation led to exposure of the government’s collateral, failed investigation of Markus for witness tampering, as well as a significant number of discovery violations. In short, it became clear the government tried, unsuccessfully, to catch Markus bribing witnesses for favorable testimony and then hid all evidence they had tried. The prosecutor in the case was not properly firewalled form that investigation and even personally claimed to give authorization to tape the conversations. And in the days before the trial, the prosecutor checked in on the witness tampering investigation, apparently hoping to force Markus to withdraw from the case just as it went to trial. In the end, Shaygan was acquitted of all 141 charges against him.

After the trial, Miami District Court Judge Alan Gold held a sanctions hearing against the government for its gross misconduct. He held the government in violation of the Hyde Amendment. He had them pay all reasonable costs after a superseding indictment he judged was filed as part of the “seismic shift in strategy.” And he publicly reprimanded the prosecutors involved in the case.

Now, the government admitted that it committed significant errors.

The United States acknowledges that it initiated a collateral investigation into witness tampering and authorized two witnesses, Carlos Vento and Trinity Clendening, to tape their discussions with members of the defense team in violation of United States Attorney’s Office policy; that, although there were efforts made to erect a “taint wall,” the wall was imperfect and was breached by the trial prosecutors, AUSA Sean Paul Cronin and Andrea Hoffman, at least in part, because the case agent, DEA Special Agent Christopher Wells, was initially on both sides of the wall; and that, because the United States violated its discovery obligations by not disclosing to the defense “(a) that witnesses Vento and Clendening were cooperating with the government by recording their conversations with members of the defense team, and (b) Vento’s and Clendening’s recorded statements at the time of their trial testimony.” Finally, the United States “acknowledges and regrets” that, “in complying with the Court’s pre-trial order to produce all DEA-6 reports for in camera inspection on February 12, 2009 (Court Ex. 6), the government failed to provide the Court with the two DEA-6 reports regarding the collateral investigation, specifically Agent Wells’ December 12, 2008 report (Court Ex. 2) and Agent Brown’s January 16, 2009 report (Court Ex. 3).”

After the sanctions hearing, the government agreed to pay some legal fees associated with their misconduct. They just objected, and appealed, to the public reprimand and the requirement they pay for all fees after the superseding indictment.

But the appeals court not only threw out the entire financial sanction, it also vacated the public reprimands of the lawyers.

Read more

With Latif Decision, Section 1031 Authorizes Indefinitely Detaining Americans Based on Gossip

As I noted yesterday, both Dianne Feinstein and Carl Levin understand Section 1031 of the Defense Authorization to authorize the indefinite detention of American citizens. Levin says we don’t have to worry about that, though, because Americans would still have access to habeas corpus review.

Section 1031 makes no reference to habeas corpus, and places no limitation on habeas corpus review.  Nor could it.  Under the Constitution, habeas corpus review is available to any American citizen who is held in military custody, and to any non-citizen who is held in military custody inside the United States.

Even ignoring the case of Jose Padilla, which demonstrates how easily the government can make habeas unavailable to American citizens, there’s another problem with Levin’s assurances.

Habeas was gutted on October 14, when Janice Rogers Brown wrote a Circuit Court opinion holding that in habeas suits, judges must grant official government records the
presumption of regularity.

The habeas case of Adnan Farhan Abdul Latif largely focused on one report purporting to show that Latif fought with the Taliban. I suspect the report is an early 2002 CIA report, written during the period when the US was trying to sort through hundreds of detainees turned over (sometimes in exchange for a bounty) by the Pakistanis. The report I suspect is at issue summarizes the stories of at least 9 detainees, four of whom have already been transferred out of US custody. David Tatel’s dissent makes it clear that there were clear inaccuracies in the report, and he describes Judge Henry Kennedy’s judgment that this conditions under which this report was made–in the fog of war, the majority opinion agrees–increased the likelihood that the report was inaccurate. Of note, Latif’s Factual Return reveals the government believed him to be Bangladeshi until March 6, 2002 (see paragraph 4); they blame this misunderstanding on him lying, but seeing as how the language of an interrogation–whether Arabic or Bangladeshi–would either seem to make his Arab identity clear or beset the entire interrogation with language difficulties, it seems likely the misunderstanding came from the problem surrounding his early interrogations.

Beyond that report, the government relied on two things to claim that Latif had been appropriately detained: The claim that his travel facilitator, Ibrahim Alawi, is the same guy as an al Qaeda recruiter, Ibrahim Balawi (usually referred to as Abu Khulud), in spite of the fact that none of the 7 detainees recruited by Balawi have identified Latif. And the observation that Latif’s travel to Afghanistan from Yemen and then out of Afghanistan to Pakistan traveled the same path as that of al Qaeda fighters (here, too, none of the fighters who traveled that same path identified Latif as part of their group).

In other words, the government used one intelligence report of dubious reliability and uncorroborated pattern analysis to argue that Latif had fought with the Taliban and therefore is legally being held at Gitmo.

And in spite of the problem with the report (and therefore the government’s case), Judge Janice Rogers Brown held that unless Judge Kennedy finds Latif so credible as to rebut the government’s argument, he is properly held. More troubling, Rogers Brown held that judges must presume that government evidence gathering–intelligence reports–are accurate as a default.

When the detainee’s challenge is to the evidence-gathering process itself, should a presumption of regularity apply to the official government document that results ? We think the answer is yes.

Rogers Brown is arguing for a presumption of regularity, of course, for the same intelligence community that got us into Iraq on claims of WMD; the report in question almost certainly dates to around the same period that CIA went 6 months without noticing an obvious forgery.

Read more

More FOIA Refusals Hiding DOJ’s Informant Practices

The Center for Constitutional Rights is helping former Black Panther, community activist, and Common Ground founder Malik Rahim sue to get the FBI’s records on FBI informant Brandon Darby’s infiltration of Common Ground.

Today, the Center for Constitutional Rights (CCR), in collaboration with the Loyola Law School’s Clinic in New Orleans, filed a federal lawsuit against the U.S. Department of Justice and the Federal Bureau of Investigation demanding records related to Brandon Darby’s collaboration with the FBI during his involvement with Common Ground, a New Orleans relief organization that provided supplies and assistance in the aftermath of Hurricane Katrina and worked on rebuilding the New Orleans community from the ground up. Darby, who notoriously infiltrated protest groups at the 2008 Republican National Convention, co-founded Common Ground only to then infiltrate and disrupt the group. The lawsuit, filed in the District Court for the Eastern District of Louisiana on behalf of New Orleans community organizer and Common Ground Relief founder Malik Rahim, follows repeated unsuccessful requests by Mr. Rahim to have the FBI release documents detailing warrantless surveillance that he and other activists might have been subject to while working alongside Mr. Darby.

Darby’s work–and his work as an informant has been repeatedly documented (see also this report on the FBI file of Scott Crow, who started Common Ground with Darby and Rahim). But when Rahim tried to FOIA his own file in 2009, the FBI refused to turn over anything related to Darby’s work as an informant.

Plaintiff submitted, by letter dated February 24, 2009, and later amended on July 30, 2009, a FOIA request to Defendant FBI for all documents relating to Malik Rahim or his organization Common Ground Relief.

[snip]

Specifically, the FOIA request further sought “all records, documents and things . . . ” related to surveillance, investigation, use of informants and agents, planting or gathering “evidence,” and any other activities pertaining to Malik Rahim including anything related to Common Ground Relief and Brandon Darby.

On March 17, 2009, the FOIA request of Malik Rahim was denied on the grounds that the FBI would not respond to a FOIA request concerning another individual in addition to Malik Rahim without a “privacy waiver” being filled out by Brandon Darby.

On July 30, 2009, an appeal was filed to the denial. This appeal set out several reasons why the records should be made public, including: “the public right to be informed about what their government is up to,” citing U.S. Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 773 (1989); the fact that if Brandon Darby was an undercover informant for the FBI during his time at Common Ground, then that would be an act of such public concern that it would overcome personal privacy exemptions, citing National Archives & Records Administration v. Favish, 541 U.S. 157, 172 (2004). This appeal is attached.

[snip]

On September 25, 2009, the U.S. Department of Justice Office of Information Policy stated it was affirming the original refusal of the FBI to release any information pertaining to Brandon Darby and further affirmed the refusal of the FBI to neither confirm nor deny the existence of any records responsive to the request. They said: “Without consent, proof of death, official acknowledgement of an investigation, or an overriding public interest, confirming or denying the existence of the records your client requested would constitute an unwarranted invasion of personal privacy.”

The FBI response to Rahim’s FOIA is interesting on two counts. Rahim FOIAed for these records before Comac Carney ruled in the Islamic Shura Council FOIA case; the first denial, in which the FBI invoked privacy concerns, came before Carney’s June 23, 2009 ruling; the final denial came after it (remember it was two years before that ruling would be made public). But rather than excluding these files by pretending that no such files existed as they would under the Meese Memo, they responded using something like a Glomar response, “neither confirming nor denying” the records existed. And the denial is particularly odd given the hodge podge of reasons the FBI offered that might convince them to release the documents. Would Rahim get the same packet of documents, redacted the same way, if FBI released them with a privacy waver as they would with a public interest waiver?

One thing seems clear. The FBI is using all manner of dumb excuses to avoid handing over details of its infiltration of groups exercising their First Amendment rights. We can debate how they’ll respond under FOIA, but it’s clear their informant files exist.

Terrorists “Citizens Who Threaten Our Safety and Security”'>The Waffle House Terrorists “Citizens Who Threaten Our Safety and Security”

When the Waffle House Plot broke last week, I joked that maybe the FBI will start profiling Waffle Houses rather than mosques; they’d probably have more luck finding terrorists there.

But I wanted to make a few points about the plot in addition to what Jim already said.

First, there are actually two sub-plots: one attempt to acquire silencers and explosives to attack federal buildings and employees; just Frederick Thomas and Dan Roberts are implicated in that plot. The other was a half-baked discussion to manufacture ricin. Ray Adams and Samuel Crump are primarily implicated in that plot, with Roberts and Thomas goading them on. That’s significant because while the weapons plot advanced steadily over time culminating in a purchase, the ricin “plot” consisted of some bragging in March, and some taped conversations in September and October, showing not only that the alleged attackers were largely ignorant about ricin, but also appearing to show them coaching the confidential informant in the case how to make ricin, not necessarily making it themselves.

If you’re gonna do this (unintelligible), it’s gotta be built, a hood. There can be no air, can’t be no disturbance.

[snip]

I can get ya seed (castor beans). I know where the seeds is at right now.

[snip]

You take a pound of that (unintelligible), get upwind, up around Washington, DC, get about 20,000 feet (in an airplane), and turn that shit loose, it’d cover the whole (unintelligible) of Washington.

That’s particularly significant because the last two conversations laying out the ricin plot–separate conversations October 29 with both Crump and Adams–were not recorded by the informant. And that informant? He’s a liar.

CHS1 is currently on bond for pending felony state charges. The FBI administered a polygraph test to CHS1 during the investigation of a militia group. The FBI polygrapher determined that CHS1 gave less than truthful responses concerning the activities of the militia group.

In short, the whole ricin plot seems like a bad advertisement for Red Devil lye, since Crump appeared to put off making the ricin because he couldn’t find that brand of lye; Adams, for his part, claimed he’d make lye himself by leaching wood ashes.

Given the lack of seriousness of the ricin plot, it appears to have been incited at the end in time for the bust in the other plot, to use guns and explosives to kill federal workers. That plot started back in March, included a surveillance trip in May, and discussions with an undercover FBI employee about buying weapons on June and July. On September 20, Thomas agreed to trade weapons 30 days later and also to pay $1000 for explosives. In late October, Thomas, Roberts, and the informant put together money to make the purchase. On November 1, Thomas and Roberts bought a silencer and what they believed to be explosives from an undercover FBI agent.

There’s just one weird thing about the evidence presented in the Thomas and Roberts affidavits. They describe planning for the final meeting–at which they’d pool their money to buy the silencers and explosives–to be held on October 29. The affidavits were signed on November 1. The indictment describes them buying a silencer and what they believed were explosives on November 1. But there’s no discussion about what happened at the October 29 meeting. Particularly given that the two ricin conversations on October 29 were not taped, I wonder whether the informant in this case got cold feet?

In any case, that’s what passes for a terrorist plot propagated by a bunch of senior citizen wingnuts.

Now, the plot is interesting for the way US Attorney Sally Quillian Yates used this FBI-abetted sting to warn about the risks posed by [senior] “citizens within our own borders who threaten our safety and security.”

While many are focused on the threat posed by international violent extremists, this case demonstrates that we must also remain vigilant in protecting our country from citizens within our own borders who threaten our safety and security.

I’m grateful that the FBI is finally focusing on domestic terrorists, even if they’re fluffing up the risk just as they do with aspirational Muslim terrorists. But note that, in spite of the involvement of the Joint Terrorism Task Force, it seems Yates can’t force herself to call these dudes terrorists.  Perhaps they should rename the JTTF the JCWOOBWTOSASTF?

And of course there’s another difference between this and the crimes those brown people called terrorists commit. As Manssor Arbabsiar was alleged to have done, these militia members allegedly discussed assassinations. As Arbabsiar was alleged to have done, these plotters allegedly discussed explosives. Whereas with Arbabsiar, there is zero public evidence he affirmatively sought to use explosives to commit assassination, there is here. Unlike Arbabsiar, these militia members actually bought what they believed to be explosives.

And yet, unlike Arbabsiar, these alleged terrorists did not get charged with a WMD charge–not even for their alleged attempt to make ricin. Once again, it seems almost impossible for white terrorists to be charged with the FBI’s favorite charge for brown terrorists.

Finally, one more difference between the treatment of these scary white terrorists and scary brown ones. As TP’s Lee Fang notes (piggybacking off this GAPolitico post), Thomas was a commenter at RedState, where Erick Erickson has called for violence in the past.

Thomas blogged on RedState.com, the website edited by CNN’s Erick Erickson. The Thomas blog post highlighted by Baker and AJC revealed that at one point, he did not “advocate a general rebellion against the U.S. Government for cause,” but seemed conflicted about the idea of violent revolution. Something apparently changed between that unpromoted post, published in July of 2008 and this year, when the alleged plot began taking shape.

A ThinkProgress examination of Thomas’s online writing in the following years shows that the alleged terrorist grew more and more upset, and expressed sympathy with the anti-Obama conspiracies posted on RedState. Last year, he posted a comment to a popular RedState post about the evils of health reform. Thomas claimed that the “ObummerCare Bill” not only “won’t be forgiven,” but will lead to “TYRANNY of the worst order” and “civil war.” (view a screenshot of the comment here)

And as the affidavits make clear, the plot was inspired by a Mike Vanderboegh novel; Fang notes that Thomas has also commented on Vanderboegh’s blog. Last year, Vanderboegh claimed credit for coordinated attacks in protest of the health insurance reform–one of them targeted at Gabby Giffords–in three states.

On Friday, former militia leader Mike Vanderboegh called for anti-Democratic vandalism across the country to protest the health care bill.

Vanderboegh posted the call for action Friday on his blog, “Sipsey Street Irregulars.” Referring to the health care reform bill as “Nancy Pelosi’s Intolerable Act,” he told followers to send a message to Democrats.

“We can break their windows,” he said. “Break them NOW. And if we do a proper job, if we break the windows of hundreds, thousands, of Democrat party headquarters across this country, we might just wake up enough of them to make defending ourselves at the muzzle of a rifle unnecessary.”

And, apparently in response, there were attacks in–at least–Wichita, KS, Tucson, AZ,  Rochester, NY, Niagara Falls, NY.  Vanderboegh has proudly claimed credit for the coordinated attacks.

Now maybe Vanderboegh and Erickson are just the FBI’s latest incarnation of Hal Turner, wingnut bloggers they pay to inspire other wingnuts whom they can arrest in Waffle House plots; maybe the FBI hasn’t tracked their calls for violence at all. But if Vanderboegh and Erickson were Muslim propagandists advocating violence–like Anwar al-Awlaki or Samir Khan–they’d probably be worried about a drone raining down from the sky. I’m definitely not advocating that for any propagandists, whether Muslim or wingnut, being killed for their protected, albeit vile, speech.

But maybe now that the government is using stings to warn of the danger of domestic terrorists, those inciting them ought to think more seriously about how our government combats terrorists.

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

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

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.

The Coordinated Leaky Drips In The White House

As I’ve noted previously, there has been a hue and cry against the critical and untenable use, and abuse, of secrecy by the United States government. There has always been some abuse of the government’s classified evidence for political gain by various administrations operating the Executive Branch, but the antics of the Obama administration have taken the disingenuous ploy to a new art form.

Today, via Politico’s old fawning Washington DC gluehorse, Roger Simon, comes an unadulterated (sometimes x-rated) and stunningly tin eared and arrogant admission of what the Obama White House is all about, straight from the lips of Obama consigliere Bill Daley:

Rahm was famous for calling reporters, do you call reporters? I ask.

“I call; I’m not as aggressive leaking and stroking,” Daley says. “I’m not reflecting on Rahm, but I’m not angling for something else, you know? Rahm is a lot younger [Emmanuel is 51], and he knew he was going to be doing something else in two years or four years or eight years, and I’m in a different stage. I’m not going to become the leaker in chief.”

You’ve got others for that, I say.

“Yeah, and hopefully in some organized leaking fashion,” Daley says, laughing. “I’m all for leaking when it’s organized.”

Oh, ha ha ha, isn’t that just hilarious? Bill Daley, and the White House he runs, are all for leaking, history bears out even the most highly classified government secrets, and doing so in an organized pre-planned fashion, when it serves their little self-centric petty political interests. But god help an honest citizen like Thomas Drake who, after exhausting all other avenues of pursuit within the government, leaks only the bare minimum information necessary to expose giant government waste, fraud and illegality because he feels it his duty as a citizen.

For citizens like Tom Drake, the “most transparent administration in history” will come down on his head like a ton of nuclear bricks even when they embarrass themselves in so doing. But they are more than willing to exploit and leak to self serve their own interests. What is good for the king is not appropriate for the commoner.

In this regard, I wish to amplify point that Glenn Greenwald has previously made about the pernicious affect of this duplicitous use of classified information. Glenn said:

But the problem is much worse than mere execssive secrecy. Anyone who purports concern over the harmful leaking of classified information should look first to the Obama administration, which uses secrecy powers as a manipulative tool to propagandize the citizenry: trumpeting information that makes the leader and his government look good while  suppressing anything with the force of criminal law that does the opposite. Using secrecy powers to propagandize the citizenry this way is infinitely more harmful than any of the leaks the Obama administration has so aggressively prosecuted.

That is exactly right. It is not just that the government keeps unnecessary secrets from the public on information that is critical to their duties and responsibilities as citizens, it is that the self-serving selective leaking creates an intentionally fraudulent paradigm for the citizenry. It is not only manipulative, is fundamentally dishonest and duplicitous.

When the leaking is so selective and self-serving it is not just the people who are deceived, is the press they rely on as a neutral information conduit from which to make their opinions and determinations. The press then becomes little more than a hollow funnel for opportunistic and dishonest spin. We saw the effects of this in the case of Anwar Awlaki’s extrajudicial assassination, and have seen it again in the Scary Iranian Terrorist Murder ruse.

The last bastions against this pernicious practice are the press and courts. Until both start admitting how they are relentlessly gamed and played by the White House, there is little hope for change. And make no mistake, the press ratifies this pernicious conduct by lazily accepting such leaks and reporting without properly noting just how malignant the process is. It is all a joke to Bill Daley and Barack Obama, and the joke is on us.

PS: For a little more on the joy that is White House Chief of Staff Bill Daley, see Digby today. And a fine dissertation of why Daley should be fired on the spot by Joan Walsh in Salon. I would only note that it is not just Rahm and Daley, it is the man who consistently brings this Chicago style heavy handed belligerence to the White House. Mr. Obama’s two Chiefs of Staff do not operate apart from him, they ARE him and his Presidency. The buck for this stops at the top.

DOJ’s “New” FOIA Rule Just Attempt to Formalize Practice They’ve Been Following for Years

As you no doubt have read, the government wants to issue a rule that says they can lie when people request FOIA information. The language reads,

(1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the FOIA office of that component must confer with the Office of Information Policy (OIP) to obtain approval to apply the exclusion.
(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.

In effect, this rule would allow the government to shield information relating to an ongoing investigation, an informant, or classified information “pertaining to foreign intelligence or counterintelligence, or international terrorism” from FOIA by basically lying about whether such information exists or not. It would permit the government, upon finding years of surveillance of a person, to then tell the person that no such surveillance information exists.

The government says it is issuing this rule, “to reflect developments in the case law.”

Together, the reference to case law and the timing of this rule suggest the government is, in fact, simply trying to pass a rule that formalizes the practice they’ve used for years.

The case law in question almost certainly pertains to Islamic Shura Council v FBI, a FOIA request initially submitted in May 2006. Ultimately, in 2009, Judge Cormac Carney ruled in that case that the government had properly withheld information that would have revealed the substance of the FBI’s investigation of the Muslim organization, though his ruling was just released this spring. When Carney issued that ruling, the fact that the government had been lying to FOIA requesters all along became public.

Here’s a post I wrote when Carney’s ruling became public earlier this year, and here’s a short timeline:

May 15, 2006: CAIR and other SoCal Muslim organizations submit a broadly worded FOIA for information on investigations or infiltration of the organizations

April 27, 2007: The government informs nine of the organizations that no information had been found

May 2007: The government informs CAIR and Hussam Ayloush it has a few pages of documents on each

June 2007: The government releases redacted versions of those documents

September 18, 2007: Organizations sue

March 21, 2008: In support of a motion for summary judgment, FBI’s David Harvey submits a declaration stating the government had done an adequate search, resulting in those few pages

April 20, 2009: Carney issued an order calling for an in camera review

May 1, 2009: Harvey submits a new declaration, stating that it had withheld responsive information from CAIR and Ayloush

May 14, 2009: Carney held an in camera hearing on whether the government can mislead the court

June 23, 2009: Carney issued a sealed ruling finding that for the most part the government had properly withheld the documents, but chewing out the government for lying in the first Harvey declaration; he said he would unseal it unless otherwise directed by the 9th Circuit

July 6, 2009: The 9th Circuit stays the unsealing

November 1, 2010: The case is argued

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

September 29, 2011: DOJ reopens rule for comment

October 19, 2011: Second end of comment period for rule

So look what the timing makes clear: The government knew Carney wanted to reveal that the government lied to him–but also that it routinely lied to FOIA requesters–in June 2009. But they only issued a rule trying to formalize their practice of lying to FOIA requesters in the days before the 9th ruled, 21 months later. Rather conveniently, the timing of the rule meant the comment period would expire before it became public that the government has been going beyond Glomar and instead lying to FOIA requesters.

No wonder the ACLU and others objected.

But that doesn’t change what the facts in this case seem to suggest: that the government has been operating under Meese’s memo for years–certainly at least as far back as 2007 when the government first lied to CAIR and Ayloush to hide the big stash of documents pertaining to them.

Mind you, the ruling upholds the principle that the government can’t lie to judges to hide their lies to FOIA requesters–a principle that (as Carney pointed out) even Meese didn’t propose. Here’s that hippie Meese describing 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. In either case, the government will of course urge the court to issue a public decision which does not indicate whether it is or is not an actual exclusion situation. Such a public decision, not unlike an administrative appeal determination of an exclusion-related request for review, should specify only that a full review of the claim was undertaken and that, if an exclusion in fact was employed, it was, and continues to remain, amply justified.

And here’s the hippies on the 9th Circuit (Schroeder, Tallman, and Smith) reaffirming the principle of judicial review in FOIA.

When the government does not provide the court with accurate or complete information, the court’s function in overseeing FOIA actions and monitoring litigation is compromised. The government may withhold relevant information from plaintiffs to protect “the secret nature of the information,” id. at 826, but it must disclose to the court all relevant and responsive information in order for the court to evaluate whether the withholding was appropriate.

[snip]Therefore, if the government believes that submitting a detailed affidavit would compromise the information it is seeking to protect, then it must seek an in camera review. It cannot, however, represent to the district court that it has produced all responsive documents when in fact it has not.
We thus agree with the district court that the FOIA does not permit the government to withhold information from the court. Indeed, engaging in such omissions is antithetical to FOIA’s structure which presumes district court oversight.

And just for good measure, here’s that hippie Carney scolding the government for trying to pull something that even Ed Meese didn’t sanction.

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

I actually suspect that the 9th Circuit’s clear reaffirmation of judicial review for FOIA elicited the rule change. After all, even the Obama Administration argued the claim that they could just lie to judges to protect exclusion issues. But if they’re going to get judges to go along with their secret exclusions, folks outside of DOJ will need to know about the practice.

Of course to get there–assuming the rule is enacted–we will have to appeal every single FOIA decision, assuming always that the government is lying.

Which is a great way to run a democracy–to force citizens to always assume the government is lying.

Confirmed: the Government Hid–and Is Still Hiding–Manssor Arbabsiar’s First Docket

I first raised questions of why the government had charged Manssor Arbabsiar–the Scary Iran Plotter–with an amended complaint almost two weeks ago. As I noted then, the obvious existence of an earlier sealed complaint might suggest the possibility that Arbabsiar was charged with something entirely different than the murder-for-hire charges he got charged with on October 11.

First (and this is what got me looking at the docket in the first place), the complaint is an amended complaint. That says there’s a previous complaint. But that complaint is not in the docket. Not only is it not in the docket, but the docket starts with the arrest on September 29 (notice the docket lists his arrest twice, on both September 29 and October 11), but the numbering starts with the amended complaint (normally, even if there were a sealed original complaint, it would be incorporated within the numbering, such that the docket might start with the amended complaint but start with number 8 or something).

Two things might explain this. First, that there was an earlier unrelated complaint–say on drug charges, but the charges are tied closely enough to this op such that this counts as an amended complaint. Alternately, that Arbabsiar was charged with a bunch of things when he was arrested on September 29, but then, after at least 12 days of cooperation (during which he waived Miranda rights each day), he was charged with something else and the new complaint incorporated Ali Gholam Shakuri’s involvement, based entirely on Arbabsiar’s confession and Shakuri’s coded conversations with Arbabsiar while the latter was in US custody. [emphasis original]

If Arbabsiar were originally charged with something different than he was charged with on October 11–for example, if he were charged with drug charges that might put him away for hard time–it might explain why he waived Miranda rights for 12 days in a row, when he had, on 5 different occasions in his past, hired lawyers to represent him when he got in legal trouble.

Well, this filing not only confirms that an earlier complaint exists–the earlier complaint is dated September 28–but it confirms my suspicion the complaint is in an different docket that is entirely sealed.

On September 28, 2011, Magistrate Judge James C. Francis IV authorized a complaint bearing docket number 11 Mag. 2534 (“Sealed Complaint”), charging the above-listed defendant. The Sealed Complaint is attached hereto as Exhibit A.

On October 11, 2011, Magistrate Judge Michael H. Dolinger authorized an Amended Complaint (11 Mag. 2617) charging the defendant and Gholam Shakuri (“Amended Complaint”). By order of the Honorable Loretta A. Preska, dated October 11, 2011, the Sealed Complaint was ordered to remain sealed. On October 11, 2011, the defendant was presented on only the Amended Complaint.

The Government respectfully requests that the Court enter a limited unsealing order permitting the Government to produce the Sealed Complaint in redacted form to defense counsel as part of the discovery process. The Sealed Complaint would otherwise remain sealed.

First, compare the docket numbers:

First Complaint: 11-mg-2534

Amended Complaint: 11-mg-2617

Criminal Indictment: 11-cr-897

These are three entirely different dockets.

A search for criminal magistrate docket 11-2534 returns nothing. Which means the docket–the entire docket–is and remains sealed.

This increases the likelihood that the first complaint charges entirely different charges–such as opium charges–than the amended complaint does.

Indeed, the language of this letter appears to suggest that only Arbabsiar was charged in the first complaint. Even if this earlier complaint pertained to murder-for-hire charges, this might make sense–as I have pointed out, most of the current charges are conspiracy charges that would involve at least two defendants. But the letter suggests–by stating only that “the defendant was presented on only the Amended Complaint”–that there may be charges unique to Arbabsiar, completely unrelated charges that hang over him still–that weren’t charged because of his 12-day cooperation to implicate Shakuri.

And here’s the kicker. The government isn’t even telling Arbabsiar’s defense counsel all of what was in that first complaint. They are asking that she receive the complaint in redacted form.

So not only are they hiding the original basis of his arrest from us–US citizens and the world community, to whom the government claimed this is an international incident. But they’re hiding parts of this earlier complaint even from the public defender tasked to actually represent this guy.

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