Monday, February 6, 2012

Amnesty Document FOIA Secrecy

Judicial Watch is locked in numerous battles with the Obama administration to force the release of government documents on a wide range of scandals, including government bailouts, Fast and Furious, Obamacare and illegal immigration, to name just a few.

In fact, we've filed over 325 Freedom of Information Act (FOIA) requests with the Obama administration so far. And we have filed 44 FOIA lawsuits in federal court against this administration. This number grows by the day. We'd file more, but we only have so many lawyers.

All of this is to say that we know very well the games that Obama administration officials play to keep records secret from the American people- in violation of law. But it's very helpful when a federal court recognizes this gamesmanship as well. And that's what happened last week.

On January 27, the United States District Court for the District of Columbia issued a ruling criticizing the Obama Department of Homeland Security (DHS) for failing to abide by FOIA law in a Judicial Watch lawsuit seeking records related to the agency's policy of suspending some illegal alien deportations. (By way of review, this scandal involves a new policy by the Obama DHS to "prioritize" deportations, allowing illegal aliens to remain in the United States without fear of removal, including violent criminals.)

We filed our original FOIA request with DHS on August 30, 2010, and filed a subsequent lawsuit on March 23, 2011, after DHS stonewalled the release of records. The Obama administration filed a Motion for Summary Judgment in the lawsuit on August 4, 2011, asking the court to end Judicial Watch's lawsuit.

The decision by U.S. District Judge Colleen Kollar-Kotelly was a bit of a mixed bag. She granted DHS's motion regarding some select records, but also denied the motion in part while chastising the agency for its inadequate explanations as to why it was withholding certain documents. Here are the highlights from her ruling, which you can read in full here.

  • Regarding assertions of attorney-client privilege, the Court listed a series of "egregious" examples demonstrating DHS's unwillingness to specify reasons for exempting documents from disclosure and concluded, "In the end, DHS's generalized and non-specific showing fails to satisfy the Court that the attorney-client privilege has been properly invoked in connection with the information withheld from Judicial Watch."
  • The Court drew the same conclusion with respect to DHS's assertion of the attorney work-product privilege, which protects materials "prepared in anticipation of litigation or for trial by or for another party or its representative." The Court ruled: "Absent a more particularized showing from DHS, the Court cannot conclude that DHS has applied the appropriate standard in this case…"
  • Regarding the deliberative process privilege, which protects "documents reflecting advisory opinions, recommendations and deliberations comprising a part of the process by which governmental decisions and policies are formulated," Judge Kollar-Kotelly wrote, "The Court agrees with Judicial Watch that DHS has failed to provide sufficient factual context for much of the information withheld under the deliberative process privilege to allow the Court to conclude that the privilege has been properly invoked."
Now, given the Obama administration's obfuscation here, Judge Kollar-Kotelly had the ability to force DHS to disclose the records. But she went another route, allowing DHS one "final" opportunity to establish the applicability of these privileges to the information withheld from Judicial Watch.

As an aside, I find it a bit frustrating that private citizens and organizations have to cross every "t" and dot every "i" in FOIA litigation or risk having the hammer thrown down by the courts. Yet the federal government can outright lie, deny, stonewall and play every dirty trick in the book to avoid abiding by the law and still receive more chances to satisfy the court.

Nonetheless, the court's ruling does clearly show the secrecy gamesmanship of the Obama DHS. And we're pleased the court would not allow DHS to continue its contempt for FOIA law. We will aggressively continue our legal pursuit of these records.

There is no question that the Obama administration wants to obscure the truth about its lawless illegal alien deportation policy. And the Obama DHS believes it should be able to withhold records from the American people without explanation or justification.

The Obama administration's campaign to suspend the deportations of most illegal aliens has been subject to intense scrutiny since 2010, when the press uncovered a United States Citizenship and Immigration Services memo that contemplated various "administrative alternatives" to bypass Congress and implement stealth amnesty for illegal aliens. A subsequent Houston Chronicle story exposed an effort by the administration to suspend the deportations of illegal aliens who supposedly have not been convicted of any "serious" crimes.

However, documents previously uncovered by Judicial Watch show that DHS officials misled Congress and the public about the scope of the immigration enforcement policy change, which gave wide latitude to local immigration officials to dismiss illegal alien deportation cases - including the dismissal of charges against illegal alien criminals convicted of violent crimes.

With the "cat out of the bag," the Obama administration then officially announced that it would effectively halt any enforcement actions (on an alleged "case-by-case" basis) against any illegal alien who has not committed any other "serious" crimes. And then the administration immediately put this plan into action, using Denver, Colorado, and Baltimore, Maryland, as test cases for this dangerous and unlawful policy. According to The Associated Press:
In a trial run of a politically divisive program, U.S. prosecutors in Denver and Baltimore are reviewing thousands of deportation cases to determine which illegal immigrants might stay in the country - perhaps indefinitely - so officials can reduce a huge backlog by focusing mainly on detainees with criminal backgrounds or who are deemed threats to national security.

Federal deportation hearings for noncriminal defendants released from custody were suspended Dec. 5 for the review and resume this week. Similar reviews are planned across the country to allow U.S. Immigration and Customs Enforcement to focus deportations of illegal immigrants on those with criminal records or those who have been deported previously.
So now you see why our battle over these DHS records is so important. The idea of suspending illegal alien deportations is no longer a theoretical exercise. It is established national policy. Amnesty by Obama administration fiat is here. This is a constitutional crisis that you won't hear about from the liberal media or, frankly, from much of anyone else these days.

And if the Obama administration is willing to release documents to Judicial Watch showing administration officials are lying when they say illegal aliens with criminal records will still be deported under this policy, just imagine the records they're still trying to conceal. We need to know every detail about how and why this policy has been implemented to know best how to stop it.