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Homeland Security and the Freedom of Information Act

Written by Subject: Police State
Overview:

This is an update on the unlawful multi-jurisdictional roadblock that took place on Arizona SR86 on December 20, 2002. For a complete account of this incident, visit https://www.checkpointua.org

As recent news reports have made clear, the federal government has been waging a full-scale campaign against the privacy rights of Americans for quite some time. The casualties of this undeclared war have not been limited to personal conversations, medical histories, financial transactions and library records however but also includes a much broader set of principles.

In order to conduct this surreptitious attack on privacy rights, the federal government's executive branch has declared itself above the law - be it statutory law from our elected representatives in Congress or the words enshrined in our founding documents designed to bind the hands of an over-reaching government. Indeed, journalists who have had the audacity to bring public attention to this government malfeasance are now being threatened with prosecution from a so-called justice department that chooses to ignore the fact that, "Congress shall make no law...abridging the freedom of speech or of the press...".

What does this unprecedented attack on privacy have to do with this case you ask? Well at the same time the executive branch has been trampling individual privacy rights, its also been shrouding its own activities behind a veil of secrecy. In so doing, it not only ignores federal law in the form of the Freedom of Information Act (FOIA) but also court rulings not in line with an over-inflated view of its own authority.

The remainder of this update will take a closer look at FOIA in general along with Homeland Security's violation of the law as it relates to this case.

Discussion:

In an attempt to curtail the ever-growing demand for government secrecy under the guise of national security (sound familiar?), Congress passed the Freedom of Information Act in 1966. Under protest from President Johnson, the bill was reluctantly signed into law on July 4th of the same year.

Initially, the law had little effect because of the following deficiencies:

* The law failed to impose a response deadline on federal agencies
* There were no penalties imposed for failure to obey the law
* There were no limits on fees that an agency could charge for information requests

Many agencies took advantage of these loopholes to discourage individuals from making FOIA requests but Congress eventually amended the law to give it teeth. Deadlines were imposed on agencies after receiving requests or face possible court action. A legal cause of action was created for failure to obey the law along with annual self-auditing requirements for all executive branch departments. And reasonable fees were defined and capped in most cases. Greater transparency in government resulted from these changes but as time passes, more and more agencies are either ignoring the law or use any excuse they can dream up to avoid granting FOIA requests in hopes of wearing down a requestor.

The biggest violator of FOIA came on the scene in 2003 and wasted no time in showing its disregard for the rule of law. As reported in 2004 by U.S. News and World Report, the Department of Homeland Security instructed its employees to ignore court orders to disclose public information:

Shushing Homeland

"Security is one thing, but how about this from the Department of Homeland Security? The agency has instructed employees to ignore, in some cases, court orders to disclose information. The agency says that an employee who gets a court order should seek a delay. And if he or she is unsuccessful and the court persists, the employee 'shall respectfully decline to comply with the demand.'"

This unconstitutional policy has had an insidious impact on the four FOIA requests I've filed over the past three years with DHS agencies. In each case, the regional office either denied the documentation existed or refused to release it on spurious grounds. In one case, the denial letter indicated it would be an unreasonable infringement on the privacy of DHS agents to release incident reports generated by those agents. In another instance, the department denied Border Patrol agents were present at the roadblock even though I included half a dozen agency license plate numbers in my request.

I appealed each denial to the FOIA Appeals Office in Washington, D.C. but only received a reversal in one case. This resulted in a heavily redacted response over two years after the initial request was made. Of the remaining cases, the oldest was denied outright even though it was almost identical to the request that was approved. The remaining requests were never even issued a FOIA case number. Instead, the agency made a vague reference to 'FOIA guidance' and refused to even consider the requests unless I submitted a written justification for it along with a biographic profile.

Clearly, DHS has adopted a new policy of intimidation in order to discourage FOIA requests and it matters not that the policy violates the law at 5 USC 552(b). In pertinent part, the most recent denial letters state:

"According to FOIA guidance, we cannot process your request without a written letter of request regarding your issues/concerns, etc. accompanying your request."

The agency goes on to state:

"Please forward all completed documents:
* Letter of Request as to what you are requesting
* Copies of all biographic documents - passport; driver's license, social security card, naturalization certificate, etc."

and finally:

"Requests received without a background letter of explanation cannot be responded to"

What's of special interest regarding these denials is the following:

* There's no explanation regarding what "FOIA guidance" the agency relied upon to deny the request even though FOIA requires each denial to be accompanied by an explanation
* No FOIA case number was generated making the response difficult to track
* The denial letter is unsigned and no contact person appears on the document

Although this is a stab in the dark, these purposeful omissions may have been made because federal law requires disciplinary action to be taken against any agent who arbitrarily or capriciously withholds FOIA documentation:

5 USC 552(a)(4)(F):

"...and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding."

In my FOIA correspondence, I requested the following documentation related to the roadblock incident on December 20, 2002:

* DHS incident reports
* DHS operational summary reports
* List of individuals and property seized by Border Patrol personnel
* Names of DHS agents present from the Border Patrol and U.S. Customs
* TOPD participation in a Native American Border Security Conference in 2002-2003
* Tucson sector CBP permanent checkpoint feasibility study from 2005
* Copies of Interagency agreements in effect between DHS and the TOPD

Copies of the actual correspondence are available at:

https://www.checkpointusa.org/roadblock/customs/customs.htm
https://www.checkpointusa.org/roadblock/BP/bp.htm

As can be seen, none of the information requested involves national security or falls under an exception listed at 5 USC 552(b). Nonetheless, the only documentation I've received in over three years are U.S. Customs incident reports with various information redacted. A similar Border Patrol incident report request was denied from the same appeals office making it obvious the decision making process is arbitrary at best.

What's disturbing is that DHS has redacted the names of all federal agents in the documentation I did receive. This isn't even done by local law enforcement where it's understood the public has a right to know the names of police officers working in the community. Additionally, Homeland Security has refused to acknowledge the fact that dozens of individuals were rounded up by Border Patrol agents at the roadblock, loaded onto a Homeland Security bus (license plate #U1192 and agency #J22316), and transported away from the scene. I've been unable to receive verification of the very existence of these individuals, let alone their current status even though I personally witnessed their detention and removal.

If this doesn't raise the specter of secret police engaging in secret government operations against the public at large then I don't know what does. Tyrannies and dictatorships thrive in such environments - not constitutional republics.

The public has a fundamental right, and responsibility, to know what its government is doing and why. On the flip side, government has absolutely NO right to know what any particular individual is doing unless there is probable cause to believe that individual has committed a crime. The two scenarios are as different as night and day and a free people shouldn't tolerate public servants that can't tell the difference.

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