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FOIA Shows Immigration Judges Reassigned to Border Lack Work While Backlog Grows at Home: FRINFORMSUM 9/28/2017

September 28, 2017

FOIA Shows Immigration Judges Reassigned to Border Lack Work While Backlog Grows at Home

Guillermo Arias/AFP/Getty Images

A FOIA request to the Justice Department’s Executive Office of Immigration Review (EOIR) shows that a Trump administration initiative to speed up deportations by sending more than 100 of the country’s roughly 300 immigration judges on short-term missions to the U.S.-Mexico border has both increased the U.S. immigration court backlog and left many judges on these short-term assignments with little to do.

The FOIA request, filed by the National Immigration Justice Center (NIJC), won memos that detail the delay of “more than 20,000 home court hearings for their details to the border from March to May.” The immigration backlog has grown during the Trump administration from 540,000 cases to 600,000, although NIJC is careful to note that the Trump administration has not necessarily worsened the backlog.

Attorney General Jeff Sessions unveiled the DOJ’s judge relocation program in Nogales, Arizona in April, characterizing the relocations as a necessary surge. The program seeks to relocate judges handling “non-detained” immigration cases “to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation.” Many judges found that, once re-located, there was not nearly enough work to fill their dockets, or the centers were not equipped to accommodate in-person hearings for a variety of reasons, including lack of internet and phone lines.

Politico reports, “Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions.”

FOIA Shows How No Fly Zone Was Established Over Standing Rock

A FOIA request to the Federal Aviation Administration won Motherboard “nearly 100 pages of emails between the FAA and federal, state, and local officials” highlighting the Morton County Police Departments efforts to quash protesters use of drones during last year’s Dakota Access pipeline protests by having the federal agency declare a temporary flight restriction (TFR) for the area. Footage taken by the drones – operated by Indigenous pilots and journalists – showed an “armored vehicle launching percussion grenades into the crowd; water cannons being fired at civilians; and continued pipeline construction after dark.” The FAA issued the TFR “ostensibly because law enforcement officers on the ground were telling the agency that drones presented a persistent threat to police helicopters and police on the ground. However, several of the events cited in emails to the FAA did not occur as described, and an Indigenous journalist who was arrested for flying drones at Standing Rock was later exonerated based on video evidence he presented in court.”

Judiciary Dems Want More on FOIA Release Concerning Trump Election Commission

Senate Judiciary Committee Democrats are again asking the Justice Department for information on a number of controversial topics the DOJ’s Civil Rights Division is involved in, including President Trump’s election fraud commission headed by Kansas State Secretary Kris Kobach (an interesting read on Kobach’s attempts to evade Kansas’ FOI law by claiming he is acting on the commission as a private citizen and not a state official can be found here). The Senators specifically seek more information from a DOJ FOIA response to the Campaign Legal Center that reveals “a February email that was forwarded to Attorney General Jeff Session from a conservative activist, who was later appointed to the commission, demanding that Democrats and even ‘mainstream’ Republicans not be selected for the panel.” The letter can be read here.

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

OMB Still Hasn’t Updated 1987 FOIA Fee Guidance

The National Security Archive has submitted comments to the Fourth United States Open Government National Action Plan (NAP 4), urging the Office of Management and Budget to update its 1987 fee guidance, which is three decades outdated and missing a key word. The recommendation was initially made to OMB in April 2016 by the federal FOIA Advisory Committee, but OMB has yet to take any visible action, and FOIA fees remain a contentious and confusing issue for many FOIA requesters. The National Security Archive’s recommendations can be read here, and you can submit your own recommendation here.

U.S. Considered Using Nuclear Weapons Against N. Korea in 1969

The escalating bellicose rhetoric between the United States and North Korea has a number of observers revisiting both “The Long History of North Korea’s Declarations of War” and the 1969 North Korean shoot down of an American EC-121 spy plane flying off the coast of the peninsula. The attack killed all 31 crew members and forced President Richard Nixon, and his National Security Adviser Henry Kissinger, to make a difficult decision about how to respond to Pyongyang. The National Security Archive’s Korea Project director, Dr. Robert Wampler, told NPR in 2010 that declassified documents won through the FOIA showed that the Nixon administration struggled to identify an adequate response. Wampler said: “The U.S. did not have a very good menu of options when this happened, which sort of constrained them in their ability to pick and choose amongst something that would work, and also contain the situation… The military produced the options, ratcheting up the level of military force all the way to all-out war and to using nuclear weapons. But constantly you find the military saying, ‘But the risks probably still outweigh the potential gains.'” See “How Do You Solve a Problem Like Korea?” for more on the declassified documents.

National Security Agency Tracking of U.S. Citizens – “Questionable Practices” from 1960s & 1970s

The National Security Agency’s (NSA) own official history conflated two different constitutionally “questionable practices” involving surveillance of U.S. citizens, according to recent NSA declassifications recently published by the National Security Archive.

During the mid-1970s, the U.S. Senate’s Church Committee investigated a number of such “practices” by NSA, including the so-called Watch List program, which monitored the international communications of anti-Vietnam war activists and other alleged “subversives,” and the NSA’s creation of a voluminous filing system on prominent U.S. citizens. Ultimately the filing system, and corresponding indexes, surpassed 1,000,000 names, including 73,000 U.S. citizens.

The Agency’s history mistakenly folded in the NSA’s filing system on U.S. citizens into the Watch List, thus incorrectly stating that Senator Howard Baker and journalists Art Buchwald and Tom Wicker, among others, were on the Watch List. New documents that the NSA has released to the Archive through a mandatory declassification review appeal provide an important corrective to the Agency’s official history.

Oil on canvas by Commander E.J. Fitzgerald, January 1965. It depicts the engagement between USS Maddox (DD-731) and three North Vietnamese motor torpedo boats on 2 August 1964.

TBT Pick – The Gulf of Tonkin

This week’s #TBT pick is chosen with Ken Burns and Lynn Novick’s new documentary, The Vietnam War, in mind. This week’s pick is a 2004 posting by Archive Senior Analyst John Prados on the 40-year-anniversary of the Gulf of Tonkin and how flawed intelligence influenced the decision to escalate the war. Prados notes, “President Johnson and top U.S. officials chose to believe that North Vietnam had just attacked U.S. destroyers in the Gulf of Tonkin, even though the highly classified signals intercepts they cited to each other actually described a naval clash two days earlier (a battle prompted by covert U.S. attacks on North Vietnam), according to the declassified intercepts, Johnson White House tapes, and related documents.” The compilation of signals intercepts, which were only declassified in 2003, and audio files and transcripts of the key Tonkin Gulf conversations between President Johnson and Defense Secretary Robert McNamara, among other key resources, can be found on the National Security Archive’s website.

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