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Will Senators Filibuster Chuck Hagel’s Nomination to Get the Targeted Killing Memo?

Eleven Senators just sent President Obama a letter asking nicely, for at least the 12th time, the targeted killing memo. They remind him of his promise of transparency and oversight.

In your speech at the National Archives in May 2009, you stated that “Whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions — by Congress or by the courts.” We applaud this principled commitment to the Constitutional system of checks and balances, and hope that you will help us obtain the documents that we need to conduct the oversight that you have called for. The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions. 

And asks — yet again — for “any and all memos.”

Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens.

But perhaps the most important part of this letter is that it refers not just to John Brennan’s nomination, but to “senior national security positions.”

As the Senate considers a number of nominees for senior national security positions, we ask that you ensure that Congress is provided with the secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.

There are just 11 Senators on this list:

  • Ron Wyden (D-Ore.)
  • Mike Lee (R-Utah)
  • Mark Udall (D-Colo.)
  • Chuck Grassley (R-Iowa)
  • Jeff Merkley (D-Ore.)
  • Susan Collins (R-Maine)
  • Dick Durbin (Ill.)
  • Patrick Leahy (D-Vt.)
  • Tom Udall (D-N.M.)
  • Mark Begich (D-Alaska)
  • Al Franken (D- Minn.)

And just three of these — Wyden, Mark Udall, and Collins — are on the Intelligence Committee. That’s not enough to block Brennan’s confirmation.

But it may be enough to block Hagel’s confirmation, given all the other Republicans who are opposing him.

Sherrod Brown and Chuck Grassley Watch Frontline, Too

Citing this line from Lanny Breuer in last week’s Frontline program,

I think I and prosecutors around the country, being responsible, should speak to regulators, should speak to experts, because if I bring a case against institution, and as a result of bringing that case, there’s some huge economic effect — if it creates a ripple effect so that suddenly, counterparties and other financial institutions or other companies that had nothing to do with this are affected badly — it’s a factor we need to know and understand.

Sherrod Brown and Chuck Grassley have sent a list of questions they want Eric Holder to answer by February 8.

The questions are:

  1. Has the Justice Department designated certain institutions whose failure could jeopardize the stability of the financial markets and are thus, “too big to jail”?  If so, please name them.
  2. Has the Justice Department ever failed to bring a prosecution against an institution due to concern that their failure could jeopardize financial markets?
  3. Are there any entities the Justice Department has entered into settlements with, in which the amount of the settlement reflected a concern that markets could be impacted by such a settlement?  If so, for which entities?
  4. Please provide the names of all outside experts consulted by the Justice Department in making prosecutorial decisions regarding financial institutions with over $1 billion in assets.
  5. Please provide any compensation contracts for these individuals.
  6. How did DOJ ensure that these experts provided unconflicted and unbiased advice to DOJ?

I’m interested in their focus on contractors. Has someone like Promontory Financial Group been making these decisions too?

In any case I await Holder’s non-responsive answer with bated breath.

Democratic and Republican Agreement: Prosecute HSBC

Apparently, Matt Taibbi and Glenn Greenwald and Matt Stoller and Howie Klein and I aren’t the only hippies who believe HSBC should be treated like any other legal person who helped drug gangs and terrorists launder money.

Both Chuck Grassley and Jeff Merkley have written Eric Holder letters complaining about this treatment.

Here’s Grassley (who, as he notes elsewhere in the letter, is the Ranking Member on the Senate Judiciary Committee and has demanded a briefing):

I write today to express my continuing disappointment with the enforcement policies of the Department of Justice (Department). On December 12, 2012, the Department entered into a Deferred Prosecution Agreement (DPA) with HSBC, a global bank that has now admitted to violating federal laws designed to prevent drug lords and terrorists from laundering money in the United States. While the Department has publicly congratulated itself for this settlement, the truth is that the Department has refused to prosecute any individual employees or the bank responsible for these crimes. This troubling lack of real enforcement will have consequences for the health of our economy and the safety and prosperity of the American people.

[snip]

In spite of this egregious criminal conduct, the DPA fails in finding the proper punishment for the bank or its employees.  Under its terms, the DPA obligates HSBC to pay $1.92 billion to the federal government, improve its internal AML controls, and submit to the oversight of an outside monitor for five years.   Despite the fact that this is a “record” settlement,  for a bank as gigantic as HSBC this is hardly even a slap on the wrist.  It only amounts to between 9 and 11% of HBSC’s profits last year alone,  and is a bare fraction of the sums left unmonitored.

[snip]

Even more concerning is the fact that the individuals responsible for these failures are not being held accountable.  The Department has not prosecuted a single employee of HSBC—no executives, no directors, no AML compliance staff members, no one.  By allowing these individuals to walk away without any real punishment, the Department is declaring that crime actually does pay.  Functionally, HSBC has quite literally purchased a get-out-of-jail-free card for its employees for the price of $1.92 billion dollars.

[snip]

Past settlements with large banks prove that they do nothing to change what appears to be a culture of noncompliance for some businesses.According to the U.S. Sentencing Commission, jail time is served by over 96 percent of persons that plead or are found guilty of drug trafficking, 80 percent of those that plead or are found guilty of money laundering, and 63 percent of those caught in possession of drugs.[6]  As the deferred prosecution agreement appears now to be the corporate equivalent of acknowledging guilt, the best way for a guilty party to avoid jail time may be to ensure that the party is or is employed by a globally significant bank  In March 2010, the Department arranged a then-record $160 million deferred prosecution agreement with Wachovia based on its laundering of more than $110 million from Colombian and Mexican drug cartels.   Officials at the time stated that “blatant disregard for our banking laws gave international cocaine cartels a virtual carte blanche to finance their operations.”   In this case, a bank escaped with a record monetary settlement and a conspicuous absence of individuals behind bars.  If the story sounds eerily similar, that’s because it is.  It happened again with HSBC. [my emphasis]

And here’s Merkley (who is on the Senate Banking Committee):

I do not take a position on the merits of this or any other individual case, but I am deeply concerned that four years after the financial crisis, the Department appears to have firmly set the precedent that no bank, bank employee, or bank executive can be prosecuted even for serious criminal actions if that bank is a large, systemically important financial institution. This “too big to jail” approach to law enforcement, which deeply offends the public’s sense of justice, effectively vitiates the law as written by Congress. Had Congress wished to declare that violations of money laundering, terrorist financing, fraud, and a number of other illicit financial actions would only constitute civil violations, it could have done so. It did not.

[snip]

According to the U.S. Sentencing Commission, jail time is served by over 96 percent of persons that plead or are found guilty of drug trafficking, 80 percent of those that plead or are found guilty of money laundering, and 63 percent of those caught in possession of drugs.[6] As the deferred prosecution agreement appears now to be the corporate equivalent of acknowledging guilt, the best way for a guilty party to avoid jail time may be to ensure that the party is or is employed by a globally significant bank. [my emphasis]

Note, unlike Lanny Breuer, both Senators mention terrorism (though Merkley seems unaware how serious HSBC’s ties to Islamic terrorist financing are).

More importantly, they sound like the rest of us dirty hippies, making the audacious argument that banks ought to be subject to laws.

Cornyn Called Targeted Killing a “Program,” Too

I noted yesterday that the government, in its cynical attempt to play dumb about what the ACLU and NYT were FOIAing in their Anwar al-Awlaki memo lawsuits, had exhibited the same problems with basic definitions as Clinton had over the definition of “is.”

Plaintiffs do not define, and it is otherwise unclear from their response, what is meant by “targeted killing program.”

Interestingly, Tom Junod revealed that one of his sources got squeamish about his use of the word “program.”

But there is someone else who has received at least a cursory white paper introduction to the Administration’s targeted killing of American citizens who is on the record calling it a program: John Cornyn.

In his efforts (thwarted by all the Democrats on the Senate Judiciary Committee) to pass an amendment requiring the Administration to share all legal analysis on its authority to engaging in targeting killings of Americans overseas, he said this:

Cornyn: This is an amendment I alluded to earlier which would require the Executive Branch to share with Congress the legal basis for their decision to engage in a program of targeted killings, including apparently American citizens abroad. This is, just to be clear, not asking about the program per se, just asking about the legal rationale. I think all of us are troubled at least initially, without further explanation, about the use of targeted killings that involve American citizens. We all understand that even American citizens may become traitors and declare war, in essence, against their own country. But there has to be a rationale for this in law. And I think this is about transparency, this is about accountability, and it’s also important for Congress–the only branch that can actually legislate–if there are aspects of this legal argument or rationale which Congress would choose to hold hearings on, conduct appropriate oversight, or legislate on, this is the kind of information that Congress is entitled to as part of our Constitutional role. I know we can all agree that the decision to use this program bears heavily on core national values. [my emphasis]

Elsewhere in the debate (I’ve included my own transcription of it below), Pat Leahy reveals the Administration provided a white paper on the program (though Cornyn suggests–and Leahy seems to confirm–that didn’t include the legal analysis). Which suggests Cornyn is working from the presentation the Administration gave to Congressional overseers of DOJ.

And based on that presentation, Cornyn seems to believe it’s a program.

My transcript of this part of the hearing–which begins around 98:32–is below the line. Read more

I Guess Steve King Would Cede the All-Around Gymnastics Gold to Russia’s Victoria Komova?

Gabby Douglas and her coach, Liang Chow, show the strength of America’s diversity.

At around mid-day, IA Congressman Steve King said the following:

“The argument that diversity is our strength has really never been backed up by logic,” King told The Huffington Post. “It’s unity is where our strength is. Our Founding Fathers understood that. Modern-day multiculturalists are defying that.”

Not long after Steve King made that ridiculous comment, Gabby Douglas–who trained in IA for the last two years–became the first African American woman (in fact, the first non-white; no Chinese women have even won this) to win the gymnastics all-around gold.

The best gymnast in the world.

This evening, Chuck Grassley did what every other member of Congress has been doing during the Olympics: bragging about athletes to whom they can claim any ties. (All Chuckisms original)

Congrats to GabbyDouglas for GOLD in g ymnastics. She a Virginian But she came to Iowa to live to train. I bleve like Shawn johnson

Gabby moved to IA, of course, so she could train with Chinese immigrant Liang Chow, who first moved to IA to coach University of IA’s gymnasts in 1991 and became a citizen in 2002. Gabby is the second young woman Chow has trained to Gold in Grassley and King’s state (he coached Shawn Johnsen as well).

Today, the US is the best in the world, at least for one glorious Olympic event. And we owe that strength precisely to our diversity.

I suppose Steve King wants to give that medal back?

Update: See also this great post oln how hard Gabby’s mom worked to make this possible for her. It really conveys how inaccessible these expensive sports can be to potentially elite athletes because of economics.

The Administration Has Not Responded to Over 10 Congressional Requests for Targeted Killing Memo

Back in September 2010, when the Administration successfully argued that whether or not the government had the authority to kill Anwar al-Awlaki was a matter for the Executive and Congressional Branches to decide, it claimed Congress served as a check on that power.

The nonjusticiability of the plaintiff’s claims in this Court “does not leave the executive power unbounded.” Schneider, 412 F.3d at 200. “The political branches effectively exercise such checks and balances on each other in the area of political questions[,]” and “[i]f the executive in fact has exceeded his appropriate role in the constitutional scheme, Congress enjoys a broad range of authorities with which to exercise restraint and balance.” Id. Accordingly, “the allocation of political questions to the political branches is not inconsistent with our constitutional tradition of limited government and balance of powers.” Id.

The Administration’s behavior in the interim period has proven those assurances to be utterly false. Congress has asked the Administration on more than 10 separate occasions for the OLC memo authorizing the killing of Anwar al-Awlaki (many of these 10 documented requests refer to earlier requests, and Pat Leahy sent President Obama a letter that his office could not share).

And yet here we are, 22 months after the Administration assured Judge John Bates that Congress exercised some kind of check on the Executive, at least 17 months after members of Congress first started asking for the legal analysis, and the Administration has not responded to those requests.


Here are the requests.

February 2011: Ron Wyden asks the Director of National Intelligence for the legal analysis behind the targeted killing program. (1)

April 2011: Ron Wyden calls Eric Holder to ask for legal analysis on targeted killing. (2)

May 2011: DOJ responds to Wyden’s request, yet doesn’t answer key questions.

May 18-20, 2011: DOJ (including Office of Legislative Affairs) discusses “draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens” (this may be the DOJ response to Ron Wyden).

October 5, 2011: Chuck Grassley sends Eric Holder a letter requesting the OLC memo by October 27, 2011. (3)

November 8, 2011: Pat Leahy complains about past Administration refusal to share targeted killing OLC memo. (4)

February 8, 2012: Ron Wyden follows up on his earlier requests for information on the targeted killing memo with Eric Holder. (5)

March 7, 2012: Tom Graves (R-GA) asks Robert Mueller whether Eric Holder’s criteria for the targeted killing of Americans applies in the US; Mueller replies he’d have to ask DOJ. Per his office today, DOJ has not yet provided Graves with an answer. (6)

March 8, 2012: Pat Leahy renews his request for the OLC memo at DOJ appropriations hearing. (7)

June 7, 2012: After Jerry Nadler requests the memo, Eric Holder commits to providing the House Judiciary a briefing–but not the OLC memo–within a month. (8)

June 12, 2012: Pat Leahy renews his request for the OLC memo at DOJ oversight hearing. (9)

June 27, 2012: In Questions for the Record following a June 7 hearing, Jerry Nadler notes that DOJ has sought dismissal of court challenges to targeted killing by claiming “the appropriate check on executive branch conduct here is the Congress and that information is being shared with Congress to make that check a meaningful one,” but “we have yet to get any response” to “several requests” for the OLC memo authorizing targeted killing. He also renews his request for the briefing Holder had promised. (10)

July 19, 2012: Both Pat Leahy and Chuck Grassley complain about past unanswered requests for OLC memo. (Grassley prepared an amendment as well, but withdrew it in favor of Cornyn’s.) Leahy (but not Grassley) votes to table John Cornyn amendment to require Administration to release the memo.

July 24, 2012: SSCI passes Intelligence Authorization that requires DOJ to make all post-9/11 OLC memos available to the Senate Intelligence Committee, albeit with two big loopholes.

Targeted Killings: When John Cornyn Makes Better Sense than Democrats …

Things got a little crazy when the Senate Judiciary Committee FISA Amendment Markup turned to targeted killing.

John Cornyn used the opportunity of this must-pass intelligence bill to propose an amendment to require the Administration to share its authorization for targeting killing. Cornyn rather modestly said that “I think all of troubled w/o further explanation” for the authority. [All quotes in this post are my inexact transcription] Chuck Grassley went further, saying something to the effect of “We [the Administration] has got a license to kill, and we don’t know about that license and we won’t get it until we legislate it.”

But Democrats prevented Cornyn and Grassley from attaching legislation mandating the Administration share the authorization with Congress.

Now, Cornyn claimed (incorrectly, given his inaction on Bush’s torture and wiretapping) that he wasn’t pushing for legislation on this just because the President is a Democrat; he would have done so if the President were a Republican too. To which Dick Durbin reminded him of all the times he refused to back legislation requiring oversight and transparency under Bush.

Which was Dick Durbin’s opportunity to call for writing a letter on this issue rather than legislating. Pat Leahy suggested he could just use his letter, which was already sent and ignored. Then Grassley reminded he has sent a letter on this subject too, and been ignored.

It was a bunch of Senators recounting the number of letters demanding oversight into the President’s unchecked authority to kill, including American citizens, only to be blown off. America, fuck yeah!

Again, John Cornyn came off sounding like the adult. “We’re not mere supplicants of the Executive Branch. It is insufficient to say, “Pretty please, Mr President, please tell us about the legal authorization.”

Nevertheless, that didn’t prevent Dianne Feinstein from promising that the Senate Intelligence Committee would include language about this in their authorization, and insisting that they let SSCI, not SJC, impose requirements. She suggested (though did not make explicit) that such a requirement belongs in SSCI because targeted killing is a covert program. Which is how the entire effort got tabled, leaving everyone to write more letters.

Cornyn had one more measure, requiring the President provide notice to the Gang of Eight. Dianne Feinstein, as she has repeatedly, assured her colleagues that she and Saxby Chambliss provide all the oversight on this front that is needed. To which Cornyn asked, “Is notice of targeted killing given before or after killing?” DiFi responded, “Sometimes before, sometimes during, sometimes just after.” Cornyn replied, “I don’t think Congress should delegate all authority to one or two members. Make sure not just you, but bicameral gang of eight.”

Curiously, DiFI had no response to that, leaving the impression that the Obama Administration, even on the matter of targeted killing of US citizens, has continued the Bush Administration violation of the National Security Act by briefing just the Gang of Four, not the Gang of Eight (which would add Harry Reid, Nancy Pelosi, John Boehner, and Mitch McConnell to the Intelligence Committee heads being briefed).

But again, Democrats voted to table that amendment on a party line vote.

This is a problem. Not only is it taking legislation to even get the Senate Intelligence Committee adequately briefed on this topic, but Democrats are using partisan obstruction to prevent the Judiciary Committee from learning enough to assess for themselves whether the targeted killing of a US citizen violates the Constitution.

The FDA Demonstrates What “Targeting” Does

“They think they can be the Gestapo and do anything they want.” — Chuck Grassley, on learning his staffer’s emails had been surveilled by the FDA

It is utterly predictable that members of Congress only get concerned about heavy-handed surveillance when they get sucked up in the surveillance. And so it is that Chuck Grassley, who voted for the FISA Amendments Act, and Chris Van Hollen, who didn’t, are outraged that their offices have been dragged into the FDA’s invasive surveillance used to conduct a leak investigation.

The surveillance started in response to a belief that FDA scientists, upset that their concerns about the safety of medical diagnostic equipment had been overridden, leaked classified proprietary information to the NYT. But after targeting just 5 scientists suspected of the leak, the FDA developed profiles on 21 people thought to be conspiring against the agency.

What began as a narrow investigation into the possible leaking of confidential agency information by five scientists quickly grew in mid-2010 into a much broader campaign to counter outside critics of the agency’s medical review process, according to the cache of more than 80,000 pages of computer documents generated by the surveillance effort.

Moving to quell what one memorandum called the “collaboration” of the F.D.A.’s opponents, the surveillance operation identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and “defamatory” information about the agency.

Mind you, Grassley and Van Hollen’s aides (and Van Hollen himself) were not themselves the targets of the leak investigation. The scientists were the targets. Read more

Anonymous DOJ Statement: “Trust Us”

The Senate Judiciary Committee is holding a hearing today to review the results of the Schuelke report on the prosecutorial misconduct in the Ted Stevens case and to entertain the Lisa Murkowski bill requiring disclosure. In response, DOJ submitted a statement for the record, opposing any legislation enforcing its discovery obligations.

When concerns were first raised about the handling of the prosecution of Senator Stevens, the Department immediately conducted an internal review. The Attorney General recognized the importance of ensuring trust and confidence in the work of Department prosecutors and took the extraordinary step of moving to dismiss the case when errors were discovered. Moreover, toensure that the mistakes in the Stevens case would not be repeated, the Attorney General convened a working group to review discovery practices and charged the group with developing recommendations for improving such practices so that errors are minimized. As a result of the working group’s efforts, the Department has taken unprecedented steps, described more fully below, to ensure that prosecutors, agents, and paralegals have the necessary training and resources to fulfill their legal and ethical obligations with respect to discovery in criminal cases. These reforms include a sweeping training curriculum for all federal prosecutors and the requirement–for the first time in the history of the Department of Justice–that every federal prosecutor receive refresher discovery training each year.

In light of these internal reforms, the Department does not believe that legislation is needed to address the problems that came to light in the Stevens prosecution. Such a legislative proposal would upset the careful balance of interests at stake in criminal cases, cause significant harm to victims, witnesses, and law enforcement efforts, and generate substantial and unnecessary litigation that would divert scarce judicial and prosecutorial resources.

In short, DOJ is saying, “trust us. We don’t need a law requiring us to do what case law says we need to.”

Right off the bat, I can think of 5 major problem with this statement:

No one has been held accountable

We are three years past the time when Stevens’ case was thrown out. Yet none of the prosecutors involved have been disciplined in any meaningful way.

No doubt DOJ would say that it will hold prosecutors responsible if and when the Office of Professional Responsibility finds they committed misconduct. But in the interim three years, DOJ as a whole has sent clear messages that it prefers protecting its case to doing anything about misconduct. And–as Chuck Grassley rightly pointed out at the hearing–thus far no one has been held responsible.

This statement may claim DOJ is serious about prosecutorial misconduct. But its actions (and inaction) says the opposite.

Even after this training, discovery problems remain

As the DOJ statement lays out, in response to the Stevens debacle, DOJ rolled out annual training programs for prosecutors to remind them of their discovery obligations.

And yet, last year, Leonie Brinkema found that prosecutors in the Jeff Sterling case had failed to turn over critical evidence about prosecution witnesses–one of the problems with the Stevens prosecution. The prosecutor involved? William Welch, whom Schuelke accused of abdicating his leadership role in the Stevens case (note, DOJ says the CIA is at fault for the late discovery; but Welch is, after all, the prosecutor who bears responsibility for it).

If William Welch can’t even get discovery right after his involvement in this case and, presumably, undergoing the training DOJ promises will fix the problem, then training is not enough to fix the problem.

Eric Holder won’t run DOJ forever

The statement focuses on Holder’s quick decision to dismiss the case against Stevens, as if that, by itself, guards against any similar problems in the future. But before Holder was AG, Michael Mukasey was–and Judge Emmet Sullivan grew so exasperated with Mukasey’s stonewalling on this case, he ordered him to personally respond to questions about the case.

Read more

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 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.