An order from the U.S. District Court for the Central District of California has revealed the FBI lied to the court about the existence of records requested under the Freedom of Information Act (FOIA), taking the position that FOIA allows it to withhold information from the court whenever it thinks this is in the interest of national security. Using the strongest possible language, the court disagreed: “The Government cannot, under any circumstance, affirmatively mislead the Court.” Islamic Shura Council of S. Cal. v. FBI (“Shura Council I”), No. 07-1088, 3 (C.D. Cal. April 27, 2011) (emphasis added).
This case may prove relevant in EFF’s ongoing FOIA litigation against the FBI. As discussed further below, one of the issues in Shura Council was the FBI’s extensive and improper use of “outside the scope” redactions. The agency has also used these heavily in at least one of our current cases — in areas where it is highly unlikely the material blocked out is actually outside the scope of our FOIA request. (see example to the left from our case seeking records on the government’s push to expand federal surveillance laws). We’ll be writing more about that case in the coming weeks and posting the documents we received on this site soon.
Shura Council started five years ago in May 2006, after widespread reporting on the FBI’s programs targeting Muslims after September 11, 2001. At that time, several Muslim citizens and organizations in Southern California, including the Islamic Shura Council of Southern California and the Council on American Islamic Relations (CAIR), submitted a broad joint FOIA request to the FBI seeking “[a]ny records relating or referring” to themselves, “including . . . records that document any collection of information about monitoring, surveillance, observation, questioning, interrogation, investigation and/or infiltration[.]” Shura Council I at 4.
In 2008, after the FBI produced only minimal records, the requesters filed a federal lawsuit. The FBI then searched for and located additional records for nine of the plaintiffs, but these records were heavily redacted, with much of the information withheld as “outside the scope” of the plaintiffs’ FOIA request. The FBI attested, in documents and declarations it submitted under oath to the court, that these were all the records that existed about the plaintiffs and that the materials labeled “outside the scope” were “not responsive” to the plaintiffs’ FOIA request.
After court ordered the FBI to submit full versions of the records in camera, along with a new declaration about the agency’s search, the FBI revealed for the first time that it had materially and fundamentally mislead the court in its earlier filings. The unaltered versions of the documents showed that the information the agency had withheld as “outside the scope” was actually well within the scope of the plaintiffs’ FOIA request. The government also admitted it had a large number of additional responsive documents that it hadn’t told the plaintiffs or the court about. Id. at 7-8.
If these revelations weren’t bad enough, the FBI also argued FOIA allows it to mislead the court where it believes revealing information would “compromise national security.” Id. at 9. The FBI also argued, that “its initial representations to the Court were not technically false” because although the information might have been “factually” responsive to the plaintiffs’ FOIA request, it was “legally nonresponsive.” Id. at 9, n. 4 (emphasis added).
The court noted, this “argument is indefensible,” id. at 9-10, and held, “the FOIA does not permit the government to withhold responsive information from the court.” (Id.)(upheld on appeal in Islamic Shura Council of S. Cal. v. FBI, __ F.3d __, No. 09-56035, at 4280-81 (9th Cir. Mar. 30, 2011) (“Shura Council II”).1 The court stated:
The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.
(Shura Council I at 17) (emphasis added). This is an important opinion for FOIA requesters because sometimes the only protection a FOIA requester has from the government’s potentially arbitrary withholding of information is a court’s in camera review of the full versions of documents. If the government were allowed to withhold information from the court, this protection would be meaningless and the role of judicial oversight in FOIA cases would be compromised.
Unfortunately for the plaintiffs in Shura Council, this seems to be a hollow victory. Although the court did not restrain itself from using the strongest possible language to criticize the government’s actions (calling the FBI’s arguments “untenable,” id. at 3, “indefensible,” id. at 10, and “not credible” id. at 17) it also held that “disclosing the number and nature of the documents the Government possesses could reasonably be expected to compromise national security.” Id. 18. Therefore it did not order the government to release the records to the plaintiffs or even to reveal how many records turned up in the second search. And on appeal, the Ninth Circuit held that neither the plaintiffs nor their attorneys had the right to see the original version of the district court’s order (filed under seal) because it contained information the FBI considered to be “national security and sensitive law enforcement information.” (Shura Council II at 4286).
It seems unlikely that, five years after the plaintiffs filed their FOIA request, the release of the information the FBI has on these individuals and organizations would truly threaten national security or an ongoing criminal investigation. None of the plaintiffs appears to have been arrested or retained in conjunction with a crime or foreign terrorist plot, so it seems more likely that this is yet another example of the government valuing secrecy over transparency.
UPDATE (November 21, 2011): In a later opinion, the district court sanctioned the government for lying. In issuing monetary sanctions against the DOJ, the court held, “the Government’s deception of the Court was without any factual or legal basis and simply wrong.” (p. 19). The court noted issuing sanctions was necessary to “deter the Government from deceiving the Court again.” (p. 2). Unfortunately, it’s not clear this practice will end any time soon. The DOJ has been attempting to change its FOIA regulations to codify the procedures it used in this case. As the court noted, even though the proposed changes were withdrawn, “the deceptive policy and practice of the DOJ with respect to asserting and applying exclusions under FOIA apparently remains intact.” (p. 19).
- 1. This case has a convoluted procedural history. When the district court discovered the FBI’s lies it issued an order under seal on June 23, 2009 and told the parties it would unseal the order on July 7, 2009 unless further directed by the Ninth Circuit Court of Appeals. The government immediately appealed, and the Ninth Circuit issued a stay of the district court’s ruling until it could hear the case. On March 30, 2011, the Ninth Circuit issued its opinion in Islamic Shura Council of S. Cal. v. FBI, __ F.3d __, No. 09-56035 (9th Cir. Mar. 30, 2011), vacating the district court’s sealed order and remanding to the district court to revise its order to eliminate statements the government had designated as national security and sensitive law enforcement information. On April 27, 2011, the district court issued its revised order.
Who Profits, a project of the Israeli Coalition of Women for Peace, has uncovered evidence that Veolia is involved in dumping Israeli waste at the company’s site in Tovlan in the occupied Jordan Valley. The Israeli Civil Administration confirmed this in response to an application by Who Profits under the Freedom of Information Law.
In a newsletter of 21 November 2011, Who Profits writes that, according to the Civil Administration, eight Israeli companies hold permits to transfer waste to Tovlan landfill, including Veolia subsidiaries TMM Integrated Recycling Services and YRAV Sherutei Noy 1985.
The information provided by the Civil Administration shows that waste from recycling factories in Israel and from the Hiriya site (southeast of Tel Aviv) is transported to Tovlan landfill. The recycling factories are located in the areas of HaSharon, Sgula, Haifa and Afula. Who Profits writes:
The waste transferred to the landfill consists of municipal solid waste, construction waste, sterilized medical waste and electronic waste. The Civil Administration mentioned that there is no permit for bringing hazardous waste into the site.
The average amount of waste that originates inside Israel and is permitted to be buried in the site is 19,000 tons a month.
Tovlan landfill is built on stolen Palestinian land. The landfill serves the needs of the Israeli population. Under international law, Israel is prohibited from using occupied land for the sole benefit of its own civilian population. In Resolution 63/201 of 28 January 2009, the UN General Assembly explicitly addressed the issue. It called :
upon Israel, the occupying Power, to cease the dumping of all kinds of waste materials in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan, which gravely threaten their natural resources, namely water and land resources, and pose an environmental hazard and health threat to the civilian populations.
Meanwhile, Veolia digs its heels deeper into the Israeli occupation by offering services to the Israeli army. In mid-August of this year, according to the Who Profits newsletter, Veolia subsidiary YRAV Sherutei Noy 1985 won a contract for waste collection services from the Israeli army bases in the Jordan Valley. … Full article
Climategate 2.0: “Scientists” at the heart of the global warming movement exposed as doubting their claims
Early today FOIA.org released a zip file of 5,000 additional emails similar to those released two years ago in November 2009 and coined Climategate. All of the central characters are here including Michael Mann, Phil Jones, Ben Santer, Tom Wigley, Kevin Trenberth and Keith Briffa.
Observations do not show rising temperatures throughout the tropical troposphere unless you accept one single study and approach and discount a wealth of others. This is just downright dangerous. We need to communicate the uncertainty and be honest. Phil, hopefully we can find time to discuss these further if necessary [...]
I also think the science is being manipulated to put a political spin on it which for all our sakes might not be too clever in the long run.
It seems that a few people have a very strong say, and no matter how much talking goes on beforehand, the big decisions are made at the eleventh hour by a select core group.
Mike, The Figure you sent is very deceptive [...] there have been a number of dishonest presentations of model results by individual authors and by IPCC [...]
The trick may be to decide on the main message and use that to guid[e] what’s included and what is left out.
I agree w/ Susan [Solomon] that we should try to put more in the bullet about “Subsequent evidence” [...] Need to convince readers that there really has been an increase in knowledge – more evidence. What is it?
I’m sure you agree–the Mann/Jones GRL paper was truly pathetic and should never have been published. I don’t want to be associated with that 2000 year “reconstruction”.
The results for 400 ppm stabilization look odd in many cases [...] As it stands we’ll have to delete the results from the paper if it is to be published.
 What if climate change appears to be just mainly a multidecadal natural fluctuation?
would you agree that there is no convincing evidence for kilimanjaro glacier melt being due to recent warming (let alone man-made warming)?
[tropical glaciers] There is a small problem though with their retreat. They have retreated a lot in the last 20 years yet the MSU2LT data would suggest that temperatures haven’t increased at these levels.
There shouldn’t be someone else at UEA with different views [from "recent extreme weather is due to global warming"] – at least not a climatologist.
I am not convinced that the “truth” is always worth reaching if it is at the cost of damaged personal relationships
Phil, thanks for your thoughts – guarantee there will be no dirty laundry in the open.
He’s skeptical that the warming is as great as we show in East Antarctica — he thinks the “right” answer is more like our detrended results in the supplementary text. I cannot argue he is wrong.
This will reduce the 1940-1970 cooling in NH temps. Explaining the cooling with sulphates won’t be quite as necessary.
It is interesting to see the lower tropospheric warming minimum in the tropics in all three plots, which I cannot explain. I believe it is spurious but it is remarkably robust against my adjustment efforts.
Does anybody have an explanation why there is a relative minimum (and some negative trends) between 500 and 700 hPa? No models with significant surface warming do this
I think the urban-related warming should be smaller than this, but I can’t think of a good way to argue this. I am hopeful of finding something in the data that makes by their Figure 3.
[...] we found the [urban warming] effect is pretty big in the areas we analyzed. This is a little different from the result you obtained in 1990.
[...] We have published a few of papers on this topic in Chinese. Unfortunately, when we sent our comments to the IPCC AR4, they were mostly rejected.
there are some nitpicky jerks who have criticized the Jones et al. data sets – we don’t want one of those [EPRI/California Energy Commission meeting].
The jerk you mention was called Good(e)rich who found urban warming at all Californian sites.
I think China is one of the few places that are affected [urban heat]. The paper shows that London and Vienna (and also New York) are not affected in the 20th century.
[...] every effort has been made to use data that are either rural and/or where the urbanization effect has been removed as well as possible by statistical means. There are 3 groups that have done this independently (CRU, NOAA and GISS), and they end up with essentially the same results.
[...] Furthermore, the oceans have warmed at a rate consistent with the land. There is no urban effect there.
any method that incorporates all forms of uncertainty and error will undoubtedly result in reconstructions with wider error bars than we currently have. These many be more honest, but may not be too helpful for model comparison attribution studies. We need to be careful with the wording I think.
what he [Zwiers] has done comes to a different conclusion than Caspar and Gene! I reckon this can be saved by careful wording.
Is the PCA approach robust? Are the results statistically significant? It seems to me that in the case of MBH the answer in each is no
I am afraid that Mike is defending something that increasingly can not be defended. He is investing too much personal stuff in this and not letting the science move ahead.
One problem is that he [Mann] will be using the RegEM method, which provides no better diagnostics (e.g. betas) than his original method. So we will still not know where his estimates are coming from.
My work is as Director of the national centre for climate change research, a job which requires me to translate my Christian belief about stewardship of God’s planet into research and action.
He [another Met scientist] is a Christian and would talk authoritatively about the state of climate science from the sort of standpoint you are wanting.
I’d agree probably 10 years away to go from weather forecasting to ~ annual scale. But the “big climate picture” includes ocean feedbacks on all time scales, carbon and other elemental cycles, etc. and it has to be several decades before that is sorted out I would think. So I would guess that it will not be models or theory, but observation that will provide the answer to the question of how the climate will change in many decades time.
["Future of the IPCC", 2008] It is inconceivable that policymakers will be willing to make billion-and trillion-dollar decisions for adaptation to the projected regional climate change based on models that do not even describe and simulate the processes that are the building blocks of climate variability.
While perhaps one could designate some subset of models as being poorer in a lot of areas, there probably never will be a single universally superior model or set of models. We should keep in mind that the climate system is complex, so that it is difficult, if not impossible to define a metric that captures the breath of physical processes relevant to even a narrow area of focus.
there is no individual model that does well in all of the SST and water vapor tests we’ve applied.
[IPCC AR5 models] clearly, some tuning or very good luck involved. I doubt the modeling world will be able to get away with this much longer
Basic problem is that all models are wrong – not got enough middle and low level clouds.
GKSS is just one model and it is a model, so there is no need for it to be correct.
I’ve been told that IPCC is above national FOI Acts. One way to cover yourself and all those working in AR5 would be to delete all emails at the end of the process
UEA does not hold the very vast majority of mine [potentially FOIable emails] anyway which I copied onto private storage after the completion of the IPCC task.
Keith and I have just searched through our emails for anything containing “David Holland”. Everything we found was cc’d to you and/or Dave Palmer, which you’ll already have.
<1473> McGarvie/UEA Director of Faculty Administration:
As we are testing EIR with the other climate audit org request relating to communications with other academic colleagues, I think that we would weaken that case if we supplied the information in this case. So I would suggest that we decline this one (at the very end of the time period)
[FOI, temperature data] Any work we have done in the past is done on the back of the research grants we get – and has to be well hidden. I’ve discussed this with the main funder (US Dept of Energy) in the past and they are happy about not releasing the original station data.
FOIA 2011 gives us this commentary which should shed light on their motive in leaking these emails:
Over 2.5 billion people live on less than $2 a day.
Every day nearly 16.000 children die from hunger and related causes.
One dollar can save a life” — the opposite must also be true.
Poverty is a death sentence.
Nations must invest $37 trillion in energy technologies by 2030 to stabilize greenhouse gas emissions at sustainable levels.
Today’s decisions should be based on all the information we can get, not on hiding the decline.
Stay tuned for analysis of these and many more damning emails.
Israeli soldiers invaded the northern West Bank city of Jenin and the surrounding areas at dawn on Tuesday, and arrested eight members of the leftist Popular Front for the Liberation of Palestine (PFLP).
Local sources reported that the army invaded the city and Jenin refugee camp, before breaking into and searching several homes. Sofian Esteity – who only just recently had heart surgery one month ago- Moayyad Al Amer, Jamal Az Zobeidy, Ja’far Abu Salah, Fadi Daoud, Joseph Eseeed, and Majed Noeirat were all arrested. Jenin City Council member, Mohammad Mansour, was also taken during the early morning raid.
Palestinian security sources stated that Israeli soldiers detonated small explosives on the doors during the incursion, causing damage to the properties, and spreading panic among the local residents.
Furthermore, troops also launched operations in the nearby towns and villages of Ya’bod, Sanour, Jaba’, Mothallath Al Shuada’ and Beer Al Basha.
Dozens of soldiers were deployed in the area and at the entrances to the villages and towns, and also installed a number of temporary roadblocks.
Israel has once again refused to acknowledge international calls for transparency in its covert nuclear program during a meeting held by the International Atomic Energy Agency (IAEA).
During the nuclear-free Middle East conference in Vienna, deputy head of Israel’s Atomic Energy Commission David Danieli said on Monday that Tel Aviv would not begin talks on the issue.
“Experience shows that such a process can only be launched when normal, peaceful relations exist in the region, when the threat perception of all regional members is low,” he was quoted as saying by the Associated Press.
“Political instability, open hostilities, deep mistrust and noncompliance with international obligations are too common in many parts of the Middle East region,” he argued.
This is while participants at the gathering condemned Tel Aviv’s response, saying Israel’s massive nuclear arsenal and total lack of transparency will make the goal of a nuclear-free Middle East completely impossible.
Syria said Israel is posing a “grave and serious threat” through its undeclared atomic arsenal.
Last year, the 189 members of the Nuclear Non-Proliferation Treaty (NPT) decided to convene a UN-sponsored conference on establishing a Middle East nuclear-free zone in 2012. This year’s meeting was an incentive for most of the nations to meet with Israel for the exploratory Vienna talks.
Despite international condemnation, Tel Aviv still remains unclear whether it will even attend the 2012 talks.
Israel is considered to be the only possessor of nuclear weapons in the Middle East. It refuses to allow inspections of its nuclear facilities or to join the NPT based on its policy of nuclear ambiguity.
According to a recent survey conducted by the Berlin-based Friedrich Ebert Foundation, more than 50 percent of European people believe Israel is the most serious threat to global security.
What initially piqued my interest in this story was the report in Haaretz that former Mossad chief Rafi Eitan organised President Museveni’s recent visit to Israel, where the Ugandan dictator ended up staying in the same hotel as the Kenyan Prime Minister Raila Odinga. Eitan claims to be interested in starting a ranching business in Uganda. According to a senior Ugandan government official, the president’s secret visit likely had something to with “security matters and buying arms.”
Researching the origins of President Obama’s recent deployment of approximately 100 combat-equipped U.S. forces to help regional forces “remove from the battlefield” Lord’s Resistance Army leader Joseph Kony and senior leaders of the LRA, I learned that Sen. Russ Feingold was the author of the LRA Disarmament and Northern Uganda Recovery Act in 2009. Under the guise of campaign finance reform, McCain-Feingold legislation doubled the financial resources that the Israel lobby can deploy to elect and retain its supporters. What are the odds that AIPAC crafted both pieces of legislation?
In a 2010 report, the International Crisis Group recommended that the U.S. government should:
Deploy a team to the theatre of operations to run an intelligence platform that centralises all operational information from the Ugandan and other armies, as well as the UN and civilian networks, and provides analysis to the Ugandans to better target military operations.
George Soros, one of the ICG’s main donors, is also a major (and for a long time secret) donor to J Street — or “AIPAC Lite” as Philip Giraldi so aptly described the supposedly “alternative” pro-Israel lobby group. His Open Society Foundation is actively promoting “open society ideals” in Uganda. Significantly, ICG appears to be the source of the supposedly “humanitarian” R2P doctrine:
In its efforts to help prevent conflict worldwide, the International Crisis Group has consistently drawn upon the doctrine of the Responsibility to Protect (R2P), the principle that sovereign states, and the international community as a whole, have a responsibility to protect civilians from mass atrocity crimes. Crisis Group President Gareth Evans served as co-chair of the International Commission on Intervention and State Sovereignty that first developed the R2P concept in 2001.
In an ABC report on Obama’s decision to protect “the people of central Africa,” Jake Tapper notes that Human Rights Watch “has a great deal of information about the infamous LRA.” In 2010, Soros gave $100 million to the American organisation enabling it to “increase its advocacy in key emerging regions in the developing world.”
Considering Soros’s reputation as a “non-Zionist,” it’s remarkable how often his interests appear to converge with those of the Jewish state’s intelligence services.
Haaretz reports on the role of former Mossad chief Rafi Eitan in bringing Ugandan President Yoweri Museveni to Israel:
“I have been a friend of the Ugandan president for many years and I helped him [with the visit to Israel]. I know a few people in the wider world and sometimes I go with them to see the prime minister and the president,” Eitan told Haaretz yesterday.
Eitan initially said Museveni had invited him to the meeting with Netanyahu and Peres, but afterward said he had phoned the prime minister and president and asked to join the meetings. “Shimon Peres and I have been friends for many years. I called and told him I was a friend of the Ugandan president, and Peres told me to come to the meeting,” Eitan said.
Eitan returned to the world of business two years ago and became interested in various business ventures in Africa, mainly in Uganda. “I want to start farming projects, like a cattle ranch, but it has not yet started. In any case, agricultural projects do not depend on meetings with prime ministers,” Eitan told Haaretz.
Intriguingly, the Ugandan dictator was not the only African leader to visit the Jewish state last week. According to Uganda’s Daily Monitor newspaper:
President Museveni spent four days in the Middle East meeting Israel business community and politicians. He also coincidentally found himself in the same hotel with Kenyan Prime Minister Raila Odinga.
The two leaders were reportedly not aware of each other’s visit.
Presumably, it’s also coincidental that both Uganda and Kenya have recently joined the Somali front in the Israeli-inspired “global war on terror.”