The United States Department of Justice (DOJ) spends around $40 million every year on litigation intended to prevent the disclosure of records under the Freedom of Information Act (FOIA).
“In determining whether to defend an agency's nondisclosure decision,” according to the guidelines issued by Attorney Merrick Garland in 2022, the DOJ supposedly “will not defend nondisclosure decisions that are inconsistent with FOIA” or the “presumption of openness” that should be applied.
As part of Sunshine Week (March 10-16), The Dissenter reviewed FOIA litigation from the past fiscal year. The newsletter focused on glaring instances where the government clearly fought to prevent the disclosure of information in the public interest.
Courts may grant attorney fees in lawsuits where requesters substantially prevail and if there is a “public benefit derived from the case.” An agency may also be forced to pay fees if that agency violated its obligations under FOIA (for example, failing to adequately search for records).
The DOJ paid $1.27 million in attorney fees in fiscal year 2023, down from nearly $2 million in the previous fiscal year. (A fiscal year for the US government begins on October 1 and ends on September 30.)
On August 28, a US court ordered the DOJ to pay $120,000 to the American Civil Liberties Union (ACLU), Main Street Legal Services, and the New York Civil Liberties Union. The ACLU had demanded information from Customs and Border Protection (CBP) about units known as “tactical terrorism response teams” or “TTRTs.”
The ACLU was particularly interested in how the teams operate, how officers are trained, and “whether the guidelines that govern their activities have civil liberties and privacy safeguards.” They also sought files on the number of individuals “subjected to detention, questioning, or denial of entry into the US by these teams, and the basis for these decisions.”
A US court ordered the DOJ on July 5 to pay a little more than $111,000 to an academic researcher, who sought records from the Department of the Army on a global-assessment tool (GAT) used to assess the psychological health of soldiers and their family members. (The FOIA request was first filed in 2019.)
On May 16, a US court ordered the DOJ to pay $106,500 to the Louise Trauma Center, which describes itself as an organization that helps “immigrant women who have suffered gender-based violence.” They had requested materials on asylum officers and their training.
Seventy-five thousand dollars was paid by the DOJ to the ACLU in a settlement on April 19. The ACLU had sued the Office of the Director for National Intelligence (ODNI) for inspector-general reports related to “Section 215 surveillance, secret judicial opinions interpreting key provisions of the USA Freedom Act, and secret filings with the Foreign Intelligence Surveillance Court describing recent compliance violations.”
It is worth noting that the DOJ’s Office of Information Policy may still be underreporting the number of cases where attorney fees were awarded and the amount of attorney fees that were awarded in fiscal year 2023.
In 2018, The FOIA Project uncovered seventeen cases, where the DOJ failed to list awards for attorney fees. That represented a “22 percent increase or error rate over the number of cases that the DOJ had reported.”
Still Helping the CIA Cover Up Torture
Secrecy abuses are not limited to the cases that end in the DOJ paying out attorney fees. There are several lawsuits from the past year, where the DOJ continues to fight the release of public interest information.
For example, the ACLU represents James G Connell, who is an attorney for Ammar al Baluchi, “one of the fourteen men subjected to the CIA torture program and sent to Camp VII” at Guantanamo Bay. Connell filed a FOIA request for information from the CIA on the agency’s “operational control” over this camp.
"The CIA ultimately produced three records, withheld a fourth document in its entirety, and refused to confirm or deny whether any other responsive records exist," according to the ACLU.
So the organization challenged the CIA’s Glomar response (a refusal to confirm whether records exist) and highlighted what has already been declassified about CIA torture.
. . . The Senate Torture Report, which was released with [President Barack Obama’s] blessing after an executive branch declassification review following direct input and responses from the CIA, conclusively undermines the agency’s Glomar response. Other declassified documents in the record also address the measure of the CIA’s power and authority over Camp VII. And documents and transcripts from the Guantánamo military commissions proceedings further undermine any CIA claim to secrecy over whether records responsive to Mr. Connell’s request, in fact, exist. . .
A district court ruled in favor of the CIA in March 2023, and the ACLU is in the middle of an appeal. Despite the fact that the public already knows the CIA engaged in torture, the DOJ is still helping the CIA cover up evidence that relates to the torture of a Guantanamo prisoner.
Hiding Records on Afghan Evacuees
The Center for Constitutional Rights (CCR) filed a FOIA lawsuit on August 30 against the Pentagon, Department of Homeland Security (DHS), and the State Department. It was part of an effort to “compel multiple agencies to provide information on the thousands of Afghan evacuees arbitrarily detained in third countries.”More than two years after US troops withdrew from Afghanistan, thousands were still being held at “Humanitarian City” in the United Arab Emirates, Camp As Sayliyah in Qatar, and Camp Liya in Kosovo. And as of March 14, the DOJ has yet to submit a government response to the complaint.
Of course, there are cases where the agency buckles and produces records after the DOJ is forced to defend particular agencies in a US court.
The Knight First Amendment Institute sued the State Department, DHS, and ODNI on April 12, 2022, when the agencies failed to provide records on the policy of using “social media identifies” for “visa vetting.” (The policy was adopted under President Donald Trump but continued by President Joe Biden.)
By the end of 2022, and throughout 2023, the agencies produced documents involving the “mass collection and indefinite retention of visa applicants’ social media information.” They uncovered an admission by the National Counterterrorism Center (NCTC) that the intrusive policy has had “very little impact on improving the screening accuracy” for those seeking visas.
But officials apparently continue to conceal a report compiled by the Biden administration on the “effectiveness (or ineffectiveness) of the social media vetting program," which was “completed in October 2021.”
Kevin Gosztola is the managing editor of Shadowproof, host of The Dissenter Weekly, co-host of the podcast Unauthorized Disclosure, and member of Society of Professional Journalists (SPJ).
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