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ICE, Initially Citing No FOIA Exemption, Wrongly Denied Immigration Lawyers Access to their Clients’ A-Files: FRINFORMSUM 1/23/2020

January 24, 2020

Smith v. ICE

ICE Denied “Fugitive alien FOIA Requesters Access to the FOIA Process”

Judge William J. Martinez of the US District Court for the District of Colorado has ruled that Immigration and Customs Enforcement (ICE) violated FOIA by refusing immigration lawyers’ access to their clients’ Alien Files (A-Files). The order traces a convoluted, three-year case (Jennifer M. Smith v. U.S. Immigration and Customs Enforcement) that began in 2013 when immigration lawyer Jennifer Smith filed a FOIA request with U.S. Citizen and Immigration Services for her client’s A-File. The FOIA was referred to ICE, which responded in September 2015 stating, without citing a specific FOIA exemption, that “It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.”

Smith filed a FOIA lawsuit in August 2016, challenging the withholding and arguing that ICE’s position was a “pattern or practice” violation of FOIA, which requires agencies to cite one of nine specific exemptions as a justification for withholding information. ICE provided the requested documents shortly after the suit was filed, but Smith, working with the ACLU, continued the litigation, arguing that the suit “must prevent future violations of FOIA by ordering ICE to stop invoking its ‘fugitive’ practice entirely.”

In July 2017, ICE disclosed its new Standard Operating Policy (SOP) for responding to FOIA requests for A-Files, stating that “ICE FOIA may categorically withhold the fugitive’s law enforcement records or information pursuant to FOIA Exemption (b)(7)(A)”, which permits withholding records or information compiled for law enforcement purposes. ICE, which uses FOIAXpress as its FOIA processing software, calculated that it had sent this “Fugitive Practice” denial 333 times between July 21, 2017 and April 4, 2019.

Judge Martinez took issue with ICE’s defense of the SOP “as a proper categorical application of Exemption 7(A)”, ruling that “A proper categorical exemption applies at the document level, and not at the broader ‘file’ or ‘container’ level, unless the container only contains documents to which a proper categorical exemption applies.” Martinez went on to note that, “there is no genuine dispute of fact that ICE is impermissibly attempting to apply Exemption 7(A) at the container level.” The judge concludes by ruling, “Smith has thus carried her burden to show that there is no set of circumstances under which the SOP is lawful under FOIA.”

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OMB FOIA Release of Ukraine Documents

The Office of Management and Budget has released 129-pages of documents in response to a FOIA request concerning the office’s efforts to carry out President Trump’s order to freeze military aid to Ukraine. Two oversight organizations, American Oversight and the Center for Public Integrity, obtained the documents at the same time Senate Republicans blocked Democrat’s efforts to subpoena new evidence – including some of the information that OMB released through FOIA – in President Trump’s impeachment trial. The documents show growing tension between the Defense Department and the White House as the freeze dragged on, “and the confusion and surprise when members of Congress, including some prominent Republicans, learned that the military assistance to Ukraine had been held up.”

The released documents were heavily redacted pursuant to FOIA’s Exemption 5, often called the “withhold it because you want to” exemption. The Exemption protects agencies’ “deliberative process” privileges, a wide carve-out that allows agencies to withhold “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public.

“Lawyer” Lawsuits

President Trump’s personal attorney, Jay Sekulow, had an embarrassing flub on January 21 during the impeachment trial. Sekulow apparently misheard Rep. Val Demings (D-Fla.), one of the House impeachment managers, when she said, “The president’s lawyers may suggest that the House should have sought — that this House should have sought these materials in court, or awaited further lawsuits under the Freedom of Information Act, a.k.a. FOIA lawsuits,” going on to say that third-party FOIA lawsuits cannot be a “credible alternative to congressional oversight.”

What Sekulow heard was another matter, mistaking the phrase “FOIA lawsuits” for “lawyer lawsuits,” despite the context. He said, “And by the way — lawyer lawsuits? Lawyer lawsuits? We’re talking about the impeachment of a president of the United States, duly elected, and the members — the managers are complaining about lawyer lawsuits? The Constitution allows lawyer lawsuits. It’s disrespecting the Constitution of the United States to even say that in this chamber — lawyer lawsuits.”

The White House stood by Sekulow’s mistake, and its legislative affairs director, Eric Ueland, told reporters, “When you read the transcript it says ‘lawyer lawsuit.’” It is unclear to what transcript Ueland is referring.

Government Denies Expedited Processing of Soleimani Killing FOIA

Reporter Isaac Arnsdorf tweeted a picture of the Justice Department’s rationale for denying expedited processing of his time-sensitive FOIA request. Arnsdorf requested expedited processing for his FOIA request to the Office of Legal Counsel for “final legal advice in [OLC] since June 20, 2019, on killing Qasem Soleimani.” Despite the fact the administration has yet to provide an official legal justification for the strike that killed the Iranian general in Baghdad, a move that led to a tense-standoff between the United States and Iran that resulted in Iran mistakenly shooting down a Ukrainian passenger jet and killing all aboard, the DOJ’s public affairs director Kerri Kupec denied the request. The DOJ argued that, in its view, the killing was not a matter “in which there exist possible questions about the government’s integrity that affect public confidence.”

USCYBERCOM FOIA Release Sheds Light on Operation to Hack ISIS

This week the National Security Archive’s Cyber Vault released six new USCYBERCOM documents that shed light on the campaign to counter ISIS in cyberspace. The documents, which were obtained through FOIA, include a discussion of assessment frameworks to the 120-day assessment of Operation GLOWING SYMPHONY, reveal the unprecedented complexity of the operation, resulting challenges in coordination and deconfliction, and assessments of effectiveness.

CyberScoop’s Shannon Vavra writes that while the documents show the operation was largely successful, they also show “there were significant shortcomings, including operators having trouble collecting data, interagency deconfliction issues, difficulty vetting targets, and, in at least one case, a close call with the operation being discovered by the adversary.” And the Washington Post’s Joseph Marks’ says the documents “paint the most vivid portrait to date of the complex challenges facing U.S. military hackers as they develop rules for a new domain of warfare.”

Read the documents and the rest of the media coverage at the National Security Archive.

The Joint Chiefs of Staff during the Moorer years (copy from Naval History and Heritage Command).

Nuclear War Planning and the Challenge of Civilian Oversight

In an unusual episode in the early 1970s, the Joint Chiefs Staff tried to keep Defense Secretary Melvin Laird in the dark about an aspect of secret nuclear targeting policy involving China, according to a recently declassified archival document requested by the National Security Archive. Laird only discovered the attempt by accident.

On 24 February 1972, the Joint Chiefs mistakenly copied Laird on a message concerning ongoing efforts by military planners to develop a “Communist Chinese Nuclear Package” for the Single Integrated Operational Plan, the Pentagon’s nuclear war plan. The message not surprisingly “displeased” Laird for a number of reasons. For one, it bypassed a civilian-directed target planning review that he had already initiated. For another, its timing coincided with President Richard Nixon’s first visit to China, which was underway that same week.

The incident sheds some fascinating light on the conduct of nuclear planning during the Nixon administration and is also an interesting reflection on the broader military-civilian relationship in the area of sensitive nuclear matters. Read the document in our Nuclear Vault.

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