Administration folds in immigration FOIA fight, admits error
By JOSH GERSTEIN |
1/9/12 7:22 AM EST
The Obama Administration has quietly thrown in the towel in a long-running battle to prevent disclosure of internal legal memos about its plans to force local law enforcement agencies to participate in the controversial immigration-enforcement system known as Secure Communities. The government also admitted it made an embarrassing mistake by giving a federal judge false information last year about the circulation of one of the documents.
With much of official Washington shut down between Christmas and New Year’s, the Immigration and Customs Enforcement division of the Department of Homeland Security released the long-sought memoranda on Dec. 28 to three immigrants’ rights groups that filed a Freedom of Information Act lawsuit for the documents.
U.S. District Court Judge Shira Scheindlin ruled in October that ICE had to make public a key memo describing the legal basis for forcing local police agencies to have fingerprint checks submitted to the Federal Bureau of Investigation also cross-checked in databases of alleged immigration violators. The Manhattan-based judge said in her opinion (posted here) that ICE adopted the memo as its official rationale by apparently reading from it in public. She also said the agency failed to rebut indications raised by the immigrants’ rights groups that the memo may have been shared widely enough to void the usual attorney-client privilege.
The government appealed Scheindlin’s decision and, as recently as late November, government lawyers told the U.S. Court of Appeals for the Second Circuit that the appeal presented “important issues” about the government’s ability to preserve the confidentiality of advice rendered to top decision-makers.
“The district court’s decision has raised concerns among a variety of high-level government officials, at both the Department of Justice and the Department of Homeland Security….There is a clear public interest in the non-disclosure of documents subject to [attorney-client and deliberative process] privileges,” lawyers from the office of U.S. Attorney for the Southern District of New York Preet Bharara wrote on Nov. 29.
Less than a month later, the government effectively dropped the appeal by abruptly handing over the key nine-page memo and about 150 pages of drafts to the immigrants’ rights organizations. No explanation for the change of stance was disclosed in court documents. However, in a letter filed with Scheindlin the same day (and posted here), government lawyers revealed that a declaration ICE attorney Ryan Law previously submitted to the judge contained “an inaccurate statement” about the distribution of the key Oct. 2, 2010 memo. While ICE initially maintained that the legal memo about making Secure Communities “mandatory” was only seen by its drafters and listed recipients at the agency, the letter to Scheindlin said ICE “recently discovered” that the memo was also sent to a Justice Department attorney working on immigration matters who circulated it “to other DOJ attorneys.”
“Although the Government does not concede in any way that the distribution of the Memorandum to DOJ attorneys constitutes a waiver of the attorney-client privilege or any other privilege, consistent with the October 24 Order, the Government has released to plaintiffs those portions of the October 2 Memorandum that this Court ordered disclosed,” the letter from Bharara’s office said. “ICE regrets the inaccurate statement” and is working to confirm the accuracy of its other assurances about the distribution of the documents, the letter added.
The groups that sued over the Secure Communities records—the National Day Labor Organizing Network, the Center for Constitutional Rights and the Immigration Justice Clinic at the Cardozo School of Law in New York—do not appear to have publicized the government’s decision to give up the FOIA fight and fork over the documents, at least until a Los Angeles Times article Monday. POLITICO obtained a copy of the newly-released records on Friday and has posted them here.
The issue of whether communities can “opt out” of the Secure Communities program has been a politically sensitive one in recent years, as some localities have adopted policies of not cooperating with federal efforts to enforce immigration laws. As Scheindlin recounted in her opinion, DHS indicated through early 2010 that local communities could elect not to participate in the program, but DHS Secretary Janet Napolitano said at a press conference in October 2010, just four days after the ICE legal memo, that local law enforcement could not opt out of the program. Critics of Secure Communities say it has led to the deportation of thousands of immigrants arrested for minor offenses.
The decision to back away from the fight eliminates one of many points of contention between the Obama Administration and immigrant rights groups in this election year when President Barack Obama is eager to court the votes of Latinos. However, any attention to the underlying immigration enforcement policy could prove to be a political liability for the administration, at least among some voters.