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Like NYPD, FBI Also Investigating How Many Times a Day Muslims Pray

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Yesterday, the AP won a well-deserved Pulitzer for, among other things, revealing that the NYPD had sent an officer on a junket whitewater trip so he could count how many times a day the Muslim students on the trip prayed.

But the NYPD is not the only authority investigating Muslims based on whether they pray five times a day. A group of Muslims are suing FBI and CBP because they keep getting searched and asked how often they pray.

The four plaintiffs describe how, since 2008, all of them have been subjected to invasive searches and grilling about their religious practices during border crossings (most are talking about Canadian crossings, but this includes airports). All of the plaintiffs have had this occur on at least four different occasions.

Upon information and belief, Defendants began implementing a policy or a course of conduct under which Defendants ask Muslim American travelers attempting to re-enter the United States through the United States-Canada border at multiple international ports of entry a detailed list of questions about their religious beliefs and religious practices.

Upon information and belief, citizens of other faiths are not questioned about their religious beliefs and religious practices.

Defendants’ course of conduct or policy includes asking Muslim American travelers, at minimum, a fixed set of questions about their Islamic religious practices, which
include, but are not limited to the following:

a. Which mosque do you go to?
b. How many times a day do you pray?
c. Who is your religious leader?
d. Do you perform your morning prayer at the mosque?

When CAIR submitted a complaint to DHS, they said their “complaint process does not provide individuals with legal or procedural rights or remedies.”

This will be an interesting counterpart to David House’s suit, which recently was permitted to go forward; House argues the search was intended, in part, to access information on Bradley Manning’s supporters and therefore was an illegal abridgment of his First Amendment.

Treatment of Americans at the border has long been excepted from all First and Fourth Amendment protections. It will be interesting if, in light of clear targeting on First Amendment grounds, civil liberties supporters can start to chip away at the egregious exception.

The Implications of DOJ’s FOIA “Lies”

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On Thursday, we learned it has been the practice of DOJ for nearly a quarter century to provide misleading information in response to FOIAs asking for certain kinds of information–broadly, ongoing investigations, informants, and foreign intelligence.

In this post I want to consider how the practice may be ripe for abuse.

Here’s the statutory language in question, Section 552(c) of FOIA:

(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) [ed: this is the law enforcement exception] and – (A) the investigation or proceeding involves a possible violation of criminal law; and (B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant’s name or personal identifier are requested by a third party according to the informant’s name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant’s status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1) [ed: this is the exemption for information that has been properly classified according to Executive Order], the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

Let’s take each of these in order.

Ongoing Legal Investigation

The first exclusion–for information that might tip the subject of an investigation into a potential crime to that investigation and therefore lead her to, for example, destroy evidence–makes a bit of sense.

But it seems ripe for abuse in several ways.

First, DOJ can only exclude these files if “the subject of the investigation or proceeding is not aware of its pendency.” But DOJ gets to decide whether the subject of an investigation really “knows” she is being investigated or not. As the Meese Guidelines governing this practice explain,

Obviously, where all investigative subjects already are aware of an investigation’s pendency, the “tip off” harm sought to be prevented through this record exclusion is not of concern. Accordingly, the language of this exclusion requires agencies to consider the level of awareness already possessed by all investigative subjects involved as they consider employing it. It is appropriate that agencies do so, as the statutory language provides, according to a good-faith, “reason to believe” standard, which closely comports with the “could reasonably be expected to” standard utilized both within this exclusion and in the amended form of Exemption 7(A).

This “reason to believe” standard for considering a subject’s pre-existing awareness should afford agencies all necessary latitude in making such determinations. As the exclusion is phrased, this requirement is satisfied so long as an agency determines that it affirmatively possesses “reason to believe” that such awareness does not in fact exist. Read more →

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.

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

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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.

Obama’s DOJ Advocated Lying to Judges in June 2009

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Back in 2006, a bunch of Islamic groups FOIAed the FBI to find out what kind of records the FBI had on them. The FBI blew the request off, so in 2007, the groups sued. When the groups got their data, they complained the FBI had improperly labeled much of the files as outside the scope of their request and in the case of CAIR, clearly not provided all the documents it had. Upon review, Judge Cormac Carney realized the government had lied to him about what was in the documents and the reasons they withheld information. His opinion in response, first written in 2009, was just rewritten in unclassified form and released. It’s a remarkable glimpse into the government’s disdain for separation of powers.

Much of Carney’s ruling responds to a government brief dated June 19, 2009 that remains sealed. But Carney’s ruling makes it pretty clear what the government argued. It suggests the government took Subsection 552(c) of FOIA–which allows the government to withhold information on ongoing criminal investigations, informant identities, or national security–and argued that it permitted the government to lie not only to plaintiffs in a FOIA suit, but also to the judge overseeing the suit.

Subsection (c) thus applies in the rare circumstance in which identifying the basis for withholding information or even disclosing the existence of a record could itself compromise an ongoing criminal investigation, the identity of a confidential informant, or classified foreign intelligence or international terrorism information. Id. In this limited context, the FOIA authorizes an agency to withhold information from a requester without disclosing its basis for doing so. Id. Nothing in Subsection (c), however, allows an agency to withhold information from the Court.

Carney’s ruling goes on to make clear that the government used a 1986 Ed Meese memo interpreting this exemption–stating that the government could tell a FOIA requester that no responsive records exist–and argued that Meese had condoned telling a court that no responsive records exist.

The Government’s policy is to inform a requesting party that there are no records in instances in which the agency determines that “disclosure of the very existence of the records in question ‘could reasonably be expected to interfere with enforcement proceedings,’” or “the mere act of invoking Exemption 7(D) in response to a FOIA request tells the requester that somewhere within the records encompassed by the scope of his particular request there is reference to at least one confidential source,” or “the very existence or nonexistence, is itself a classified fact.” Id. at 20–21, 23, 25.

Despite its broad interpretation of the law enforcement exemptions and the new Section 552(c) exclusions, the Attorney General’s Memorandum does not condone lying to the Judiciary. To the contrary, the Attorney General’s Memorandum prohibits such conduct.

And finally, Carney’s ruling makes it clear that the government argued that even filing an in camera filing telling the judge that it had withheld records under this subsection would compromise national security.

Filing an in camera declaration concurrently with its public filings would not have compromised national security, and the Government’s argument to the contrary is simply not credible.

All of which leads to this true, but seemingly outdated, conclusion from Carney.

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.

Now, aside from the fact that this ruling makes it clear that the Obama DOJ wrote a filing in June 2009 that advocated lying to judges, the suit is interesting for several reasons. As EFF notes, the revelation that the FBI lied on this FOIA response may suggest it has done so in other FOIA suits. And who know? We know Obama’s DOJ submitted several versions of revised declarations in the al-Haramain case in 2009; so it’s possible they were advocating lying to judges in that case, too.

But it’s also interesting for what it says about the underlying case. As I noted, the most obviously incomplete response that led to this suit came in the case of CAIR and Hussam Ayloush, the Executive Director of CAIR in LA. Originally, the FBI gave them a single document each, which was simply not credible given the amount of FBI surveillance of CAIR that had already been made clear.

Just as importantly, even as the government told CAIR it had just one document on it, CAIR was getting increasingly involved in a suit representing the Islamic Center of Irvine (that Center was not a party to this FOIA, though the Islamic Centers of San Gabriel Valley and Hawthorne were, and the suit makes it clear the informant reported on eight other mosques in Orange County and that Monteilh was part of a “broader surveillance program”) in a suit regarding an FBI informant’s violations of their civil rights.

An ex-con, Monteilh began working for the FBI in 2003. In 2006, he was asked to infiltrate the popular Islamic Center of Irvine, where he started attending prayers five times a day and donning an Islamic robe.

In May 2007, Monteilh recorded a conversation in a car with two worshipers, in which Monteilh suggested blowing up buildings. In the tape, one man agrees with Monteilh. But a few days after the conversation, the two worshipers contacted the Los Angeles chapter of the Council on American-Islamic Relations and reported Monteilh as a potential terrorist. Other worshippers told mosque leaders that they were scared of Monteilh and felt as though he was trying to entrap them. In June 2007, the mosque obtained a restraining order against the informant.

His relationship with the FBI deteriorated shortly afterwards and, after threatening to go public, Monteilh says he signed a non-disclosure agreement in exchange for $25,000. In December 2007, Monteilh was arrested on a grand-theft charge and went to jail for 16 months.

Monteilh’s role as an informant was exposed in February 2009. Cormac Carney is the judge assigned to this suit.

In other words, back in 2007 when the government was withholding information on informants from CAIR and a bunch of southern California Islamic Centers, another Islamic Center and CAIR were exposing the offensive actions of what would turn out to be a FBI informant. And by the time the government claimed it could lie to Judge Carney in 2009, details of Monteilh’s informant activities were already becoming clear. And by the time Judge Carney ended his revised opinion last month with the sentence,

By disclosing that there are other documents that are responsive to Plaintiffs’ request, Plaintiffs will not learn anything they do not already know.

Groups affiliated with the plaintiffs in the FOIA case had already submitted a complaint to Carney laying out the type of information the FBI used an informant in one Islamic group to collect and stating that the FBI told the informant that “every mosque in the area” was under surveillance.

Not only did the government claim it could lie to Article III judges. It did so to hide information that was already being exposed as improper.

Update: I’ve reread the complaint on the informant, and note that they discovered Monteilh through the arrest of Ahmed Niazi in February 2009. (See PDF 42-43) At his bail hearing, the FBI testified to information collected via a confidential informant, who was Monteilh. But what’s particularly interesting is that when Monteilh was trying to elicit comments about violence, he did so with Niazi, who reported them to the cops and Hussam Ayloush. Ayloush reported him to the FBI. So Ayloush is actually named in this suit.

Also note: the reason Carney is presiding in the Monteilh suit is because it was determined to be a related case. The FBI subsequently tried to have this case transferred to the judge in Monteilh’s suit against the FBI, but the judge in that case declined.