new FOIA guidelines; Al Shimari v. CACI; forthcoming scholarship (NSL)

March 19, 2009

1. New FOIA Guidelines Issued by DOJ (for all agencies)

The Justice Department has issued new guidelines, for all agencies to follow, with respect to FOIA requests.  The guidelines are posted here.  From the press release:

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rules rescinded today, the Department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA.

The Attorney General’s memo also emphasizes that FOIA is the responsibility of everyone in each agency, and that in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency Chief FOIA Officers who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration. And, the Attorney General also directs FOIA professionals to work cooperatively with FOIA requesters and to anticipate interest in records before requests are made and to make requested records available promptly.

The Office of Information Policy will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency.

Today’s memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft.

2. Al Shimari v. CACI (E.D. Va. Mar. 18, 2009)

The plaintiffs in this suit are four Iraqi citizens suing CACI on the ground that contract interrogators employed by CACI abused them at Abu Ghraib.  In this lengthy decision, which is attached as a pdf, the district court grants CACI’s motion to dismiss as to the plaintiffs’ Alien Tort Statute claims.  But it rejects the motion in all other respects (though it did not foreclose the possibility of an immunity finding at a later date, after discovery).

3. Forthcoming Scholarship (NSL)

Administrative Detention of Terrorists: Why Detain, and Detain Whom?”

Matthew C. Waxman (Columbia Law)

From the introduction:

A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system.1 Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty.2 Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.”3 Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest,

charge, and prosecute suspected terrorists.4 Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”5

This debate has only intensified since the Supreme Court held last Term in Boumediene v. Bush that prisoners at Guantánamo have a constitutional right to habeas corpus review of their detention.6 The Court expressly left unresolved important substantive questions such as the scope of the Executive’s power to detain,7 and delegated to lower courts resolution of

the procedural issues likely to arise in hundreds of resulting habeas petitions.8 Administrative detention proponents argue that these openings invite Congress to enact legislation to clarify the uncertainties, recognizing that the modern-day terrorist threat necessitates new legal tools.9 Critics draw the opposite lesson from Boumediene. A week after the decision came down, the bipartisan Constitution Project published a report condemning administrative detention proposals, arguing that Boumediene “illustrates [that] existing Article III courts are fully capable of adjudicating issues regarding the legality of detention. There is no need to create a specialized tribunal either for Guantanamo detainees or for anyone else who may be subject to detention under existing law.”10

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural

and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty and security, but their resolution should precede analysis of the procedural

issues. The soundness of any specific procedural architecture depends heavily on its purpose and on the substantive determinations it is expected to make.

To some, the answers to the why and whom questions may seem obvious – to prevent terrorism we should detain terrorists. With those basic ideas apparently settled, the administrative detention debate tends to jump quickly to the question of how to detain: What procedural protections should we afford suspects? What rights should they have to challenge

evidence proffered against them – and with what kind of lawyer assistance? What kinds of officials should adjudicate cases?11

The answers to why and whom are more complex and consequential than they may seem at first glance. There are several different ways in which detention can help prevent terrorism, including incapacitating terrorists, disrupting specific plots, deterring potential terrorists, and gathering information through interrogation. The choice of which among these preventive objectives to emphasize will, in turn, drive the way the class of individuals subject to detention is defined, with major implications for both liberty and security. The way we answer the why and whom questions will then significantly determine the procedural architectural needs of any new administrative detention regime. This article therefore cautions against jumping too quickly in administrative detention discussions to the issue of procedural design, or the how questions.

Part I of this article briefly explores the Bush administration’s approach to the why and whom questions, in particular its reliance on a theory of “enemy combatants,” and the logic behind calls to reform it through administrative detention legislation. Part II examines various strategic objectives behind administrative detention proposals, and Parts III and IV then explain how those objectives translate into different definitions of the class subject to proposed detention laws. Part V returns to the procedural issues and shows how new administrative detention processes – or perhaps even special national security courts – would likely look very different depending on the strategic choices underlying them. Rather than coming down for or against new administrative detention law, this article identifies the approaches that stand the best chance of successfully protecting security and liberty, as well as questions that should guide further consideration and refinement of the policies.

Homeland Security, Information Policy, and the Transatlantic Alliance

Stewart A. Baker
Steptoe & Johnson LLP

Nathan Alexander Sales
George Mason University School of Law

Abstract:

This short essay uses a recent case study – the controversy surrounding the U.S. Department of Homeland Security’s access to European airline reservation data – as a vehicle for exploring the European Union’s new enthusiasm for projecting its data-privacy values globally. We begin by discussing how DHS uses passenger name records, or “PNR,” to detect potential terrorist operatives. We then examine the legal authorities under which passenger data is collected and used, including domestic constitutional and statutory norms as well as principles of international law. Next, the essay discusses the hostile response of some EU policymakers to DHS’s use of reservation data, and offers possible explanations for their efforts to apply European data-privacy principles to American national-security initiatives. Finally, we propose solutions to transatlantic conflicts that will help preserve both individual privacy and national autonomy.

And from the intro, which I just couldn’t resist reprinting:

It’s June 14, 2003 at Chicago’s O’Hare international airport. The U.S.-led war to topple Saddam Hussein’s Ba’athist regime in Iraq was launched a little less than three months ago. Resurgent fears of terrorism have kept some would-be passengers from the skies, but O’Hare is still operating at a fairly brisk pace.

A Jordanian man named Ra’ed al-Banna is among the throng of passengers who have just arrived on KLM flight 611 from Amsterdam. After waiting in line, al-Banna presents his passport to U.S. Customs and Border Protection officers.

The CBP officers consult the computerized targeting system used to screen passengers who seek to enter the U.S. The information about al-Banna – drawn from his airline reservations and past travel – triggers a closer look. The officers examine al-Banna’s documents, and they begin asking him questions.

Something doesn’t add up. Al-Banna has a legitimate Jordanian passport; he holds a valid visa that allows him to work in the United States; and he had visited the U.S. before for a lengthy stay. But the officers aren’t satisfied that he’s being completely truthful with his answers, so they decide to refuse him admission. Al-Banna’s fingerprints are taken, and he is put on a plane back to Jordan.

So far it sounds like a fairly routine day at the border. And it was, until events in Iraq nearly two years later gave it a new, and sinister, significance.

On February 28, 2005, at about 8:30 in the morning, several hundred police recruits were lined up outside a clinic in Hilla, a city in the south of Iraq. With no warning, a car drove into the crowd and detonated a massive bomb. 132 people were killed, and about as many were wounded. At the time, it was the deadliest suicide bombing Iraq had seen.

The driver was Ra’ed al-Banna. We know that because when authorities found the steering wheel of his car, his forearm was still chained to it.

No one knows why al-Banna wanted to be in the U.S. in 2003, or what he would have done if he had gotten in. But we do know what kept him out – the government’s ability to quickly marshal the data that first triggered a closer look, and that the CBP officer later used to question al-Banna closely and to conclude that his answers weren’t satisfactory.

At the center of that system was airline reservation data, known as Passenger Name Records or “PNR.”

The Why and How of Preventive Detention in the War on Terror

Stephanie Cooper Blum

Department of Defense, Navy, Naval Postgraduate School ; Department of Homeland Security
Thomas Cooley Law Review, Summer 2009

Abstract:

After September 11, 2001, the Bush Administration decided to detain certain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely and incommunicado for the duration of the war on terror. The rationale behind this system of preventive detention was to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges were not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the Bush Administration’s approach was reactionary, illogical, and probably unconstitutional. This article explores the underlying rationales for preventive detention as a tool in this war on terror and analyzes the legal obstacles to creating a preventive-detention regime. In the end, it offers some overarching principles that could be used by Congress or President Obama’s newly-created Special Inter-Agency Task Force to enact a comprehensive preventive-detention regime for U.S persons and foreign nationals. While establishing a lawful preventive-detention regime for terrorist suspects is challenging, there appears to be room for enacting such a regime if Congress sets forth explicit legislation allowing for preventive detention and the suspects are provided a meaningful opportunity to challenge the underlying evidence.

Attachments: CACI


ACLU v. DoD (D.D.C. Oct. 29, 2008)

October 30, 2008

* ACLU v. Dep’t of Defense (D.D.C. Oct. 29, 2008)

Judge Lamberth has granted summary judgment dismissing a FOIA request seeking disclosure of unredacted CSRT transcripts for the 14 High-Value Detainees at GTMO (KSM, etc.) and all records provided by the CSRT Recorder to the Tribunal in their cases.  The full opinion appears here.