If You Want The Government To Hand Over Documents, You Might Want To Retain A Lawyer

from the get-busy-suing-or-get-busy-waiting dept

Fifty years after the passage of the Freedom of Information Act, the letter of the law lives on but its spirit has been crushed. While it's definitely preferable to having no opportunity to demand government agencies hand over requested documents, it's not the significant improvement it was promised to be.

As was noted here four years ago, the government has pretty much adopted a presumption of opacity that necessitates the filing of lawsuits. This contradicts the law's intentions, as well as proclamations made by President Obama, who declared his administration the "most transparent." This assertion fell flat when government agencies engaged in FOIA business as usual and Obama did nothing to hold them accountable.

If you really want the government to turn over documents, you have two choices: lawyer up or add your pending FOIA requests to your will. That is the sad reality of the situation, as C.J. Ciaramella of Reason points out.

If you don't have the money to lawyer up, you'll have to content yourself with waiting months, and often years, for documents. The average time to receive a processed FOIA request from the State Department in fiscal year 2017 was 652 days, for example. The average time to receive a response to an administrative appeal was 503 days.

And that's just the stats for one agency. The FOIA Project has compiled the stats for this year's FOIA requests and found there are more requests being filed than ever before, leading to the inevitable outcome of more FOIA lawsuits being filed than ever before.

The annual rate of filed lawsuits has more than doubled under President Trump. So far this year, 860 lawsuits have been filed, compared to 402 filed in 2016. This presidency has triggered renewed interest in the FOIA process, resulting in waves of requests hitting agencies like the DOJ and DHS, as well as agencies (EPA, HHS) whose top officials have been caught behaving badly.

Rather than greet the demand with increased supply, government agencies have stayed the course they've held for the last 50 years. While there have been some welcome introductions like online filing portals and release-to-all policies for documents with significant public interest, the rate of incoming requests continues to exceed the capacity to fulfill them. But no money will be thrown to FOIA response teams. This is a part of the government that the government tends to feel can remain underserved forever.

If you want to know how bad it is, the FOIA Project has a set of data tools that allow you to sort the data to see who's screwing requesters most often, based on the number of times they've been taken to court. (Unsurprisingly, the FBI has been sued most often, including this recent filing from Buzzfeed's Jason Leopold over documents related to the agency's investigation of sexual assault complaints against Supreme Court Justice Brett Kavanaugh.)

If there's any bright side to this, it's that the apparent need to lawyer up when seeking documents is no longer (mostly) a corporate playground. Having unlimited access to in-house lawyers has turned the FOIA process into a research tool for corporations seeking an edge on competitors or simply fishing for info other companies might want to keep secret, but the government is more than happy to dispense to whoever asks.

In FY 2018, nonprofits comprised 56 percent of all FOIA lawsuits brought against the government. Nonprofits became increasingly active under the Obama Administration, but emerged as the majority of all FOIA lawsuit plaintiffs after President Trump took office. In FY 2016, nonprofit filers comprised just 36 percent of plaintiffs, whereas they comprised 50 percent or more in FY 2017 and FY 2018 (see previous report, “FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump”). Suits filed by reporters and news organizations also have been increasing.

The Freedom of Information Act is limping towards its sixth decade of existence, better than nothing, but nothing near what it was imagined it would become. Reform efforts continue to fail, largely due to government agency interference and pressure. Five decades of this has turned the FOIA process into a battle of wills that almost always takes place in a federal courtroom. Despite this, more FOIA requests are being filed than ever -- perhaps a testament to the indomitable American spirit… or an almost-masochistic unwillingness to take "no" for an answer.

Filed Under: foia, freedom of information

EFF Sues California Law Enforcement Agency For Refusing To Hand Over Stingray Documents

from the when-six-warrants-is-a-constellation-of-records dept

The EFF is taking the San Bernardino County Sheriff's Department to court. The dispute centers on Stingray warrants possessed by the agency. The Sheriff's Department likely holds more of these records than any other agency in the state. According to the Desert Sun's investigation -- based on state law-mandated reporting on electronic searches, San Bernardino residents were 20 times more likely to be subjected to an electronic search than residents elsewhere in state.

Even more troubling, a lot of these searches -- including Stingray deployments -- were performed by the department when it had no idea who it was looking for or whose devices it was searching.

If the situation is deemed an emergency, the judge can grant law enforcement the option to delay notification for up to 90 days.

A 90-day delay is also granted in cases when the identity of the person they are investigating is not known by the investigating agency.

[...]

Warrants are only reported to the California Department of Justice if the warrant receives the 90-day delay for notification. The department does not include records of warrants for electronic property, if the target is notified immediately.

Of the more than 700 warrants reported to the California Department of Justice by the San Bernardino County Sheriff’s Department, only 47 received emergency status, meaning 93 percent of their warrants were granted to investigate people whose identity was unknown to the department.

The department did not provide an explanation for why they are investigating the digital property of so many people before identifying them.

The numerous searches -- which apparently include a large number of fishing expeditions -- is an ongoing concern, especially with California's more stringent privacy laws in play. The Sheriff's Department has been a fan of Stingrays for a long time, but hasn't been very forthcoming about its deployments. This dishonesty extends to judges, who were handed pen register order requests that disguised the true nature of the search. The "insert probable cause" boilerplate pen register request obtained by Cyrus Farivar of Ars Technica suggests invasive searches were performed with plug-and-play paperwork that both laundered the evidence and utilized one-size-fits-all phrasing when seeking judicial approval.

What the EFF is seeking is a very small subset of Stingray warrants possessed by the Sheriff's Department. It's attempting to obtain copies of six warrants specifically identified by the state's Department of Justice in mandated publications. The search for these documents by the Sheriff's Department should be made even easier thanks to the inclusion of a noticeable typo.

EFF determined that the county has used cell-site simulators 231 times in the last year and filed a request under the California Public Records Act in August to obtain search warrant information for six specific searches that were made public by the DOJ. Each of the searches included authorization for the use of “cell-site stimulators” [sic], an apparent misspelling of the cell-phone tracking technology in the records submitted by San Bernardino to the DOJ.

EFF’s public records request sought court case numbers associated with the search warrants, which would enable researchers to locate court records like affidavits justifying the need for a warrant and other information vital to assessing whether police are following the law and their own policies when obtaining warrants. The request contained detailed information about each warrant, made public by the DOJ, such as the nature of the warrants, the precise start and end dates of the warrants and verbatim quotes about the grounds for each warrant.

The Sheriff's Department responded to this hyperspecific records request with more government agency boilerplate. It claimed the request was "vague" and "overly broad" and failed to describe an "identifiable record." This deliberate obtuseness will now have to be defended in court. Considering the request, the EFF's arguments aren't that difficult to make. From the filing [PDF]:

In an attempt to learn about Defendants’ use of these devices, EFF sent a request for records relating to six cell site simulator warrants that precisely identified each warrant using the information on the Department of Justice’s OpenJustice website, including the date range of the authorized search, the nature of the investigation, the items to be searched for, and the exact date and time Defendants electronically provided information about them to the Department of Justice.

Defendants refused to comply with the request, claiming that it failed to reasonably describe the records at issue and that the records are exempt from disclosure as records of an investigation under Government Code § 6254(f).

Neither of these is a legitimate justification for failing to provide the records:

The request more than reasonably described the target records. In fact, it uniquely identified the warrants in question, providing the exact time frame covered by the warrant, the exact date and time the Defendants provided information about the warrants to the Department of Justice, and other identifying information. Defendants’ claim in this regard is particularly weak because their own policy – which state law requires them to adopt and make public – requires their personnel to obtain high-level approval for, and then maintain a log of, all warrants like those here at issue. This log must contain the dates that the cell site simulator was used, which would mirror or be contained within the time frame covered by the warrant, and so would allow Defendants to easily identify and locate the requested warrants.

The EFF also points out the Sheriff's Department can't throw a blanket exception over court records -- which are presumptively public. In addition, the California DOJ has specifically instructed the EFF to obtain documents (like these warrants) listed on its OpenJustice website directly from the agency that created them.

Having been forced into openness by legislation, the Sheriff's Department is hoping to maintain some level of opacity even as it continues its record-setting pace for electronic searches of individuals it can even identify. It shouldn't take long for the court to decide the Sheriff's claims about vagueness and broadness are ridiculous. Hopefully, the court won't decide presumptively-public documents like court orders and warrant affidavits can be withheld just because a cop shop says they might reveal cop stuff.

Filed Under: foia, imsi catcher, lawsuit, san bernardino, san bernardino county sherriff's department, stingray
Companies: eff

Judge Says FOIA Isn't Battleship; Requesters Don't Need To Score Direct Hits To Obtain Documents

from the nine-page-judicial-eyeroll dept

Government agencies will eventually follow the letter of FOIA law. It usually takes a lawsuit to push things forward, but even losing in court seldom prompts above-and-beyond service from the government. The spirit of the law is ignored in favor of obfuscation, foot-dragging, and blatant antipathy.

Certainly the government shouldn't be expected to compose FOIA requesters requests for them if they send vaguely-worded requests. On the other hand, the government shouldn't demand specificity from requesters who don't know what documents an agency has on hand or how the search will be conducted.

The CIA once told a requester he needed to know exactly which parties were involved in communications about the agency's FOIA portal outage -- information that could only be gleaned from the emails the CIA was refusing to look for until it had more information. This is the normal level of being dicked around that requesters can expect when dealing with our more reticent public agencies.

"Vagueness" was the CIA's excuse to not perform its FOIA duties. The DHS, on the other hand, has decided specificity in requests can also be used against requesters. A FOIA lawsuit filed by the Government Accountability Project contends the agency did a deliberately lousy job searching for records related to border phone searches and ideological assessments performed by border security personnel.

The federal judge agrees. The opinion [PDF] notes the DHS has turned the FOIA process into a game -- one requesters aren't likely to win. [h/t Mike Scarcella]

This Freedom of Information Act case is reminiscent of the classic board game Battleship, where players array a fleet of plastic warships on a secret grid and alternate directing “shots” at the opponent’s vessels by calling out precise coordinates. A shot hits its mark only if an enemy vessel is situated on a specified target.

Plaintiff Government Accountability Project (“GAP”) asked for any records in the Department of Homeland Security’s (“DHS”) possession that related to “ideological tests” and “searches of cellphones” at the U.S. border. The agency obliged in a manner consistent with the rules of Battleship. It canvassed its electronic records for direct hits, looking only for records that contained the verbatim language GAP used in its request. For the first search, it used the terms “ideological tests” and “border”; for the second, it used the keywords “search” and “cellphone.” After the searches yielded zero responsive documents, GAP complained that DHS unreasonably omitted additional search terms that quite likely would have generated a more robust return. Because FOIA requests do not operate like a game of Battleship—and for other more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew.

Somehow the DHS failed to come up with any responsive emails related to border cellphone searches or ideological tests -- both items heavily-discussed in the news and in Congress. While the DHS did manage to find 965 megabytes of responsive records for "search" and "cellphone," its staffers decided none of the 807 documents were actually responsive to GAP's request.

GAP argued the DHS's searches were deliberately structured to steer around responsive documents. The court again agrees, pointing out it's the government's duty to help requesters obtain the documents they seek, not be deliberately obtuse.

[T]hough a “requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890. And ultimately, it is the agency’s burden to show “beyond material doubt that its search was reasonably calculated to uncover all relevant documents.” Ancient Coin Collectors Guild, 641 F.3d at 514 (quotation omitted).

The court addresses the DHS's seemingly-deliberate obtuseness in a footnote, pointing out things its FOIA response team likely knows, but chooses not to deploy to reduce the number of documents it has to hand over.

The Court appreciates DHS’s concern that searches for commonly-used words like “cell,” “phone,” and “test” may return too many records for the agency to digest. But that concern dictates using more sophisticated search techniques, including additional filtering keywords or Boolean operators and connectors, to winnow the results to a manageable level.

Doing simple things like these -- which anyone in an FOIA position should know how to do -- would produce responsive documents far more frequently than restricting the first search to "ideological test," which likely omitted documents containing both of these words but not in that specific order. The same goes for the second request, which requires uses of variations of "cellphone" to capture relevant documents. It appears the DHS had no interest in fulfilling this request or the spirit of the law -- something made doubly clear by the fact that the DHS did not even start searching for records until it was sued… five months after receiving the request.

FOIA law serves the public. It is not in place to serve the government agencies that are supposed to be serving the public. The only reason the law exists is because agencies will never be proactively transparent. They need to be forced to be transparent, and even then, they do what they can to avoid the responsibilities placed on them by this legislation. More decisions along this line will dissuade bad faith search efforts. But when legal fees are awarded, it's taxpayers who ultimately pay the price for malfeasance committed by agencies they fund with even more of their tax dollars. So the effect will be present, but the buffer zone of other people's money will definitely mute the effects.

Filed Under: battleship, cia, dhs, direct hit, exact, foia

New York Times Sues FCC With Eye On Bogus Russian Net Neutrality Comments

from the disinformation-nation dept

So we've pretty well established that somebody flooded the FCC's website with bogus comments during the agency's unpopular attack on net neutrality last year. Many of these comments were made using lifted identities (like Senators Jeff Merkley and Pat Toomey, or my own). Other comments were made using the identities of dead people. Many of the comments were made by a bot that pulled some of these fake identities in alphabetical order from a hacked database of some kind. Exactly 444,938 of those comments were made using Russian e-mail addresses.

The general consensus among activists and journalists is that it was broadband providers or a partisan advocacy group linked to broadband providers, though the FCC's total refusal to aid investigations have made proving this rather difficult. This week, the New York Times sued the FCC for its ongoing refusal to adequately respond to FOIA requests regarding the incident. In an interesting twist however, the Times seems more interested in the Russian angle of the story than the wholesale fraud that occurred:

"The request at issue in this litigation involves records that will shed light on the extent to which Russian nationals and agents of the Russian government have interfered with the agency notice-and-comment process about a topic of extensive public interest: the government’s decision to abandon “net neutrality.” Release of these records will help broaden the public’s understanding of the scope of Russian interference in the American democratic system."

It's unclear whether the Times actually thinks the Russian angle to this story is really the heart of the matter, or whether they're using concerns surrounding other Russian disinformation efforts to help bring some additional national security gravitas to the effort to expose home-grown graft and disinformation.

It's certainly possible Russia saw the net neutrality fight as another opportunity to sow division. But it's also worth noting that bogus comments supporting bad, usually anti-consumer policy is something that's been a problem across numerous agencies for several years, from fake consumers supporting efforts to rein in the banking industry, to the NFL submitting fake comments in opposition to efforts to eliminate the so-called black out rule.

On its face, those mostly likely responsible are the companies trying to shape the policies in question, and here too the most likely culprits in the net neutrality fracas are telecom monopolies with long histories of precisely this sort of nonsense.

Regardless, the Times suit makes it abundantly clear that the FCC refused to lift a finger to help reporters (or law enforcement) get to the bottom of the matter, and has routinely tried to use inapplicable FOIA exemptions (6, B5, 7E) to avoid having to share any real data:

"Repeatedly, the FCC has responded to The Times’s attempt to resolve this matter without litigation with protestations that the agency lacked the technical capacity to respond to the request, the invocation of shifting rationales for rejecting The Times’s request, and the misapplication of FOIA’s privacy exemption to duck the agency’s responsibilities under FOIA."

While it will likely take a while, slow progress is being made to force the FCC's hand on this issue. Journalist Jason Prechtel enjoyed a legal victory this week after he also sued the FCC for refusing to adequately respond to FOIA requests, data from which (largely the e-mail addresses and .CSV files utilized in the bot campaign) should surface in a few months. It's pretty obvious that there's something the FCC doesn't want explored here, and that something may just be exposed in time for not only the midterm elections, but also for the wide array of lawsuits headed the FCC's way this fall.

Filed Under: ajit pai, comments, fake comments, fcc, foia, russia, trolls

Another Batch Of FISA Court Docs Confirms The NSA Frequently Abuses Its Collection Powers

from the violating-the-law-on-the-regular dept

More evidence of the NSA's abuse of its surveillance powers has surfaced, thanks to a FOIA lawsuit by the EFF. To date, the EFF has secured 73 FISC opinions as the result of this lawsuit and is still fighting for the release of six opinions the government has chosen to withhold entirely.

One of the opinions released to the EFF shows the NSA's frequent assertions about proper minimization, careful deployment of surveillance techniques, and supposedly robust oversight are mostly false. The NSA abuses its powers and withholds evidence of its abuses from the FISA court, undermining the system of checks and balances meant to keep the agency in line.

The opinion [PDF] embedded below is just one of several recently acquired by the EFF, but it still shows plenty of surveillance power abuse by the agency. Aaron Mackey of the EFF summarizes the contents of the order:

The opinion, the date of which is redacted, orders the deletion of materials the NSA collected without court authorization. The opinion recounts how after the court learned that the NSA had exceeded an earlier issued surveillance order—resulting in surveillance it was not authorized to conduct—the government argued that it had not actually engaged in unauthorized surveillance. Instead, the government argued that it had only violated “minimization procedures,” which are restrictions on the use of the material, not the collection of it.

Judge Hogan, who served on the FISC from 2009-16 and was its chief judge from 2014-16, expressed frustration both with the government’s argument and with its lack of candor, as the court believed officials had previously acknowledged that the surveillance was unauthorized. The opinion then describes how the surveillance failed to comply with several provisions of the Foreign Intelligence Surveillance Act (FISA) in collecting the intelligence.

Much of the opinion is redacted, leaving only sentence fragments for readers to parse. But even these fragments manage to produce a decent depiction of apparently long-running program abuses by the NSA. What the court called "unauthorized electronic surveillance," the government claimed was only a violation of minimization procedures. Even if the court was willing to cede this argument to the government (and it wasn't), the court goes on to point out that the NSA had done nothing to address this violation of minimization procedures.

The government has undertaken, but not completed, a process to identify and destroy [redacted], such that the effects of having acquired [redacted] have not been completely eradicated.

A little further on, the court makes it clear repairing minimization procedures does not excuse prior unauthorized collections, nor would it make similar collections legal in the future.

It has been understood from the inception of FISA that minimization procedures could include limitations on what communications may be acquired from surveillance directed at an otherwise authorized facility. When the government disregards such a limitation, thereby acquiring communications in excess of what the order authorizes, those acquisitions constitute unauthorized electronic surveillance…

And it appears the NSA again withheld info from the court, preventing it from doing its job properly.

[T]he Court was deprived of an adequate understanding of the facts known to NSA and, even if the government were correct that acquisition [redacted] was authorized, a clear and express record of that authorization is lacking.

This is only one of several FISA court documents discussing unauthorized collections. The stockpile of FOIAed documents indicates the government has rarely used its collections programs correctly. The history of the NSA's interactions with the FISA court is littered with references to over-collection and agency obfuscation. This is more of the same from an agency that claims to be precisely and thoroughly controlled by external and internal oversight. The FISA court documents don't align with the NSA's narrative. Instead, they show an agency willing to ignore the law and mislead the court to engage in surveillance its oversight has never authorized.

Filed Under: abuses, fisa court, fisc, foia, nsa, surveillance
Companies: eff

Judge Says Trump 'Witch Hunt' Tweets Can't Beat DOJ's Glomar Response On FBI Investigation Documents

from the official-statements-v.-rambling-discourse dept

A federal court has decided public statements -- including a handful of tweets -- from President Trump aren't enough to undercut the DOJ's Glomar response about the existence of investigation documents. The James Madison Project, along with journalist Josh Gerstein, have been seeking documents confirming (or denying) President Trump himself has been or is currently the target of a DOJ investigation. (h/t Mike Scarcella)

The DOJ has refused to answer the question or provide documents asserting anything one way or the other. Instead, it has told the plaintiffs it can neither confirm nor deny these documents exist. The DOJ is using FOIA Exemption 7(a) to support its Glomar, which covers documents whose release could "reasonably be expected to interfere with law enforcement proceedings."

One would think the use of any FOIA exemption would indicate sought documents exist. But the DOJ continues to insist it can't even verify the existence (or nonexistence) of these documents without undermining an investigation it is or isn't engaged in.

The plaintiffs argue the DOJ cannot continue to express itself in the form of a Glomar -- not after President Trump himself appears to have confirmed he's a target of an FBI investigation. The court notes it's not impossible for government officials to undercut Glomar responses with public statements, but what the plaintiffs have gathered as evidence isn't enough to overcome the exemption. From the opinion [PDF]:

Plaintiffs base their case solely on statements made by President Trump, including some of his early morning tweets. Plaintiffs invite the Court to conclude that responsive records exist based on the President’s summaries of conversations he had with the former FBI director as well as a number of vague, and sometimes hostile, comments made on social media concerning the investigation.

In addition to Trump's strange insistence that former FBI Director James Comey told him "three times" he wasn't under investigation (in his letter to Comey informing him he'd been fired), the plaintiffs point to a television interview where Trump reiterated his "three times" claim, and a number of tweets about "witch hunts" issued by the president.

The court notes there's a lack of specificity in Trump's public statements. Trump's claims he was told multiple times he was not under investigation doesn't necessarily indicate the DOJ or FBI hold records containing this information. Trump supposedly received this info from Comey three times in three different personal conversations with the FBI director -- none of which required official documentation.

The tweets are, unfortunately, not very precise either. As the court points out, "rambling" emissions during early morning hours are hardly hard proof the FBI/DOJ have records pertaining to investigations/non-investigations of President Donald Trump. The court makes it pretty clear Trump's tweets should not be read as official statements confirming the existence of anything.

As stated before, an official acknowledgment cannot be based on “public speculation, no matter how widespread.” Here again, plaintiffs admit that President Trump’s exclamations were sparked by information disseminated by the press, rather than government documents, so those tweets cannot constitute an official acknowledgment.

Plaintiffs argue that the problem is cured in this situation because the President’s tweets officially acknowledged the “authenticity” of the leaked questions. That is quite a stretch. The President complains that it was “disgraceful that the questions concerning the Russian Witch Hunt were leaked to the media.” Other than the use of the phrase “the questions” (emphasis added), the tweet does not confirm or even imply that the published list is accurate. The Court is reluctant to place so much emphasis on the President’s choice of a single article in a rambling set of comments issued at 4:00 in the morning.

[...]

The second and third tweets in the series are even further from official acknowledgments than the first. None of the impassioned but disjointed references to a “Witch Hunt,” “setup & trap,” “collusion,” or “obstruction” matches the FOIA request. And the fact that the President is vociferously attacking the investigators makes the proposition that he was speaking on their behalf in this instance somewhat dubious.

And so it goes for the rest of the President's public statements, made during interviews with television shows and websites. The statements made are vague and tend not to confirm existence of documents. Most of what the President has said about the investigation the DOJ can neither confirm nor deny has been "impassioned but disjointed." The court says the plaintiffs need far more than imprecise ramblings to prevail and grants the DOJ's motion to dismiss the case.

Precision matters when you're going up against the government in a FOIA case. Interpretations of imprecise statements tends to end up weighing in the favor of non-disclosure, despite the FOIA's statutory presumption of transparency. A public official rambling on about witch hunts at 4 a.m. probably shouldn't be treated as a trustworthy source of inside information -- especially when that official routinely inverts the Glomar by confirming and denying ("I'm not under investigation," "WITCH HUNT!") an investigation exists.

Filed Under: donald trump, fbi, foia, glomar, investigation, transparency

Court Catches ICE In A Lie As It Tries To Vanish A Mexican Journalist And Immigration Policy Critic

from the FOIA-to-the-rescue dept

A lot of talk about "bad hombres" and former "shithole" denizens raping, pillaging, and terrorizing their way through our country has led to a lot of beefed-up immigration enforcement. ICE, once just a post-9/11 also-ran relegated to counterfeit panty raids and seizing sites the RIAA didn't like, is now front and center. It is the face of immigration enforcement and it's the agency that's decided a handful of executive orders outweigh the Constitutional rights we extend to asylum seekers and other entrants into this country.

Lots of rights go violated in the case of Mexican journalist Emilio Gutierrez-Soto. Gutierrez entered the country with his son, Oscar, in June 2008. He made credible claims his life would be in danger if he was returned to Mexico, stating that his house had already been raided at least once by Mexican military police, presumably in retaliation for his reporting. He was detained for seven months and separated from his son while asylum proceedings continued. After being released, he reunited with his son and other members of his family.

The proceedings dragged on. Gutierrez made a living operating a food truck while nothing much got adjudicated. He also criticized the US's immigration policies and procedures as being unnecessarily punitive, especially considering the country's history of welcoming immigrants. He noted the extremely odd handling of asylum cases like his, where people seeking refuge from persecution are tossed into a jail or detainment center for months or years while the courts slowly make their way through their case backlog.

Gutierrez didn't receive a final decision on his asylum request for almost a decade. That's when things started going very badly.

In July 2017, immigration judge Robert Hough finally ruled on his nine-year-old asylum claim. Hough ruled that Gutiérrez did not present sufficient evidence to prove that he was targeted for his journalistic work or that his life would be in danger if he returned to Mexico.

This meant Gutierrez would be sent back to Mexico despite building a life for nine years without incident on this side of the border. He could still appeal the decision but he would have to wait for ICE to make its own call on deportation. The bureaucracy requires a final determination from ICE before an asylum seeker can seek an emergency stay from the Bureau of Immigration Affairs. Before meeting with ICE to get its final decision, Gutierrez issued his own parting shot.

On October 4, 2017, Gutiérrez accepted the National Press Club's prestigious John Aubuchon award on behalf of all Mexican journalists. During his acceptance speech at the club's black-tie awards gala in Washington, D.C., Gutiérrez accused the U.S. government of hypocrisy for advocating for human rights abroad while denying them at home. Gutiérrez was particularly critical of the United States' asylum policies.

"Those who seek political asylum in countries like the U.S. encounter the decisions of immigration authorities that barter away international laws," he said.

ICE told Gutierrez and his legal rep it would consult with the BIA before making a decision. It never did this. In fact, it tossed him and his son into a vehicle and began driving them toward the border within moments of denying a stay to Gutierrez. Gutierrez had the right to stay in the country until the BIA made a final determination but ICE ignored this. It also decided to lock the two asylum seekers up after the BIA issued its emergency stay.

Before Gutiérrez could be handed over to the Mexican government, the BIA called [attorney Eduardo] Beckett back with good news — Gutiérrez and Oscar had been granted an emergency stay of deportation. Beckett immediately called ICE and told them to bring Gutiérrez and Oscar back. The agency refused. The BIA's emergency order might have prevented ICE from deporting Gutiérrez and his son, but it did not prevent the agency from detaining them.

ICE agents took Gutiérrez and Oscar to an immigration detention facility. They would remain in ICE detention for nearly eight months, and Gutiérrez's food truck would be stolen while he was still detained.

This is where things get even more fucked up. On top of the additional detention, FOIA'ed emails showed ICE targeted Gutierrez for deportment even before his case had received a final ruling from the court and while it was supposed to be targeting the "worst of the worst" for immediate ejection. The presiding judge noted ICE's lie in his ruling.

“Respondents [ICE] contend that they detained Petitioners [Gutierrez-Soto and his son] based on a warrant issued after the removal order issued by the immigration judge became final in August 2017,” Guaderrama wrote in a July 10 decision. “However, the emails between ICE officials undermine Respondents’ argument. The emails show that ICE officials were already targeting Mr. Gutierrez-Soto in February 2017. … This is significant because it is before the immigration judge issued the removal order in July 2017, which became final in August 2017.”

The judge also found this to be "sufficient evidence" Gutierrez was targeted for his comments about immigration policies and ICE. Rather than continue to fight this lawsuit after stacking the deck against itself by lying to the court, ICE agreed to release Gutierrez and his son.

Unfortunately, ICE may still get another chance to deport a critic. Unbelievably, Gutierrez's asylum case still isn't completely resolved. His appeal has been granted given the new evidence ICE targeted him for removal prior to a final judicial decision and quite possibly because they didn't like his exercising his First Amendment rights. If the judge decides Gutierrez can't prove he'll be persecuted by Mexican authorities if he's forced to return to Mexico, his asylum request will be denied. ICE may still get what it wants even after violating the asylum seeker's rights multiple times over the last several years.

ICE is an inordinately powerful agency. It has been for years, but it's now the right arm of an administration obsessed with rooting foreigners out and closing our borders. Its excesses will be excused with garbled talking points and MS-13 infographics. This single incident shows it's willing to ignore federal courts when not lying to them in order to punish a critic. If this is what it does during a publicized case, there are likely hundreds of similar abuses taking place that will go undiscovered.

Filed Under: asylum, critics, deportation, emilio gutierrez-soto, foia, free speech, ice, journalism, journalists, lies, targeting

Breaking With 30 Years Of Traditional Opacity, DOJ Releases FISA Warrant Applications For Surveillance Of Carter Page

from the FOIA-ACHIEVEMENT-UNLOCKED dept

The Trump Administration can claim a historic first, even though it would probably rather not do so. As the result of multiple FOIA lawsuits -- whose arguments were strengthened by Trump's tweets and statements from the House Intelligence community -- the DOJ has released a stack of FISA warrant applications. This has never happened in the 30-year existence of the FISA court.

The 412-page document [PDF] (which is actually four warrant applications and their accompanying court orders) detail the FBI's surveillance of Carter Page, alleged agent of a foreign power. The affidavits detail Page's connections to Russia, as well as the FBI's reliance on contested Steele dossier to build its case.

There are a lot of redactions that obscure Page's ties to Russian government officials, intelligence officers, and business owners, but there's enough left out in the open to draw some inferences. What's most interesting about the warrant applications is how often they rebut assertions made by Devin Nunes and his supposedly-damning memo.

Nunes portrayed this investigation as an abuse of surveillance powers to spy on the Trump campaign. Unfortunately for this member of the Intelligence Oversight Committee, the documents make it clear surveillance of Page didn't begin until after he had left his position as an adviser to Trump.

That doesn't mean Trump is off the hook in terms of collusion. The documents also refer to other members of Trump's campaign team "perhaps" being involved with Russian officials and intelligence services during the campaign.

The affidavits also undercut Nunes' and Trump's claims the FBI misled the FISA court about the origins of the Steele Dossier. Both claimed the FBI did not disclose the fact this dossier had been funded by Trump's political opponents. Footnotes attached to the very first warrant request expressly state Steele ("Source #1") had been hired by to dig up dirt on Trump's Russian connections by an outside law firm.

Source #1, who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to Source #1 that a U.S.-base law firm had hired the identified U.S. person to conduct research regarding Candidate #1's ties to Russia… The identified U.S. person hired Source #1 to conduct this research… The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1's campaign.

Unfortunately, a majority of the truly interesting stuff is redacted. We don't have many details about Page's involvement with Russian powers or what other criminal acts the FBI suspected he was engaged in. There's no unredacted discussion of the surveillance tactics deployed or how many non-targets may have been swept up in the FBI's intercepts. What is left unredacted is only enough to see how many Russian officials Page had access to and how they used him (one instance is left unredacted) to influence Trump's Russia-directed statements during the election campaign.

Does this mean we'll see more FISA surveillance applications released in the future? It seems doubtful. There aren't any others that have received so much public discussion from high-ranking government officials -- the very thing that undercut the DOJ's attempt to Glomar its way out of producing documents. This investigation is different. It has direct ties to the current president -- another high-ranking official who couldn't stop talking about the FISA affidavits the DOJ kept refusing to acknowledge existed. It's good these have been made public and it may eventually lead to even more transparency from the nation's most-secretive court. But this has the feel of an anomaly -- the byproduct of a highly-anomalous presidency.

Filed Under: carter page, fisa application, fisa warrant application, fisc, foia, russia, trump campaign

DHS Tells Records Requester It Can't Find Documents It Posted To Its Own Website

from the weaponizing-your-tax-dollars dept

Government agencies large and small, federal and non-federal, are aggressive non-participants in the free flow of information. Laws enacted to force the government to be responsive to records requests have made it possible to obtain documents from agencies, but this can often take the form of long, expensive legal battles.

When not deterring public records requesters with insane fee demands or years of stonewalling, the government plays keepaway with documents by playing the role of insane, cackling villains, casting aside logic and goodwill in equal parts to assure the public remains ill-informed and well-screwed.

Here are just a few highlights from the government's non-goodwill tours:

• The CIA pretends information it handed on the sly to selected journalists has not been "made public"
• The FBI redacts a document that had already been made public by Senator Rand Paul
• A state agency pretends it doesn't know who requested documents in an attempt to deny standing in a records lawsuit
• The DOJ tells Techdirt it can't find a gag order it had already released to another requester
• The FBI tells Jason Leopold it can't release documents it had already released to Techdirt
• The FBI tells a records requester it can't find a document it had already released to another requester six months earlier
• The IRS turns over fully-redacted documents to a requester in the form of password-protected encrypted files... with no password included

It is in this spirit of non-cooperation that we bring you the following, via FOIA warrior Emma Best and MuckRock: if something is always in the last place you look, why not check your own website first?

In late February 2017, the Trump Administration took some of its earliest steps towards implementing a new border wall policy with an executive order and several memos issued by the Department of Homeland Security’s leadership. In response to the policy, MuckRock filed a FOIA request for “memos relating to executive orders signed by Donald Trump,” including but not limited to memos described in a specific article.

Just under 17 months later, DHS responded with a letter saying that they were unable to find any such memos. Despite these claims, two of the memos which DHS said they were unable to find had already been posted to their website.

As Best points out, this isn't just an embarrassing failure by the DHS's FOIA response team. A couple of easily-avoidable errors is one thing. Ongoing antipathy that results in this sort of under-service is a symptom of a bigger problem.

While DHS’ failure to provide copies of already publicly available memos may appear to be an amusing annoyance, their response to the FOIA request highlights the agency’s general failing with FOIA. There’s no reason to believe that these were the only two DHS memos relating to Trump’s executive orders, since no policy can be fully implemented by just two memos. The DHS’ failure to find copies of already public documents brings their search process into question for both this particular FOIA request as well as FOIA requests in general.

This is being appealed, with Best making the understated suggestion the DHS's search attempt wasn't very thorough by pointing it to the two memos posted at its own website. But even if the DHS had found the memos under its nose, it's still stiffing requesters by pretending there's nothing else guiding its monumental shift in immigration enforcement priorities. This is bad faith by bad actors who apparently feel it's their duty to keep the public in the dark.

Filed Under: dhs, foia, transparency