Udall to Holder: ‘Don’t try to protect citizens by lying to them’

Colorado U.S. Senator Mark Udall, a member of the Senate Select Committee on Intelligence, has been a champion in the post-9/11 era of the need to balance tough national security measures against concerns for civil liberties and privacy protections. Wednesday he sent a letter to Attorney General Eric Holder expressing “deep concern” over a plan to rework a key regulation tied to the Freedom of Information Act (FOIA). The new regulation, known as 16.6(f)(2), would allow the government to lie to citizens seeking sensitive information.

“I certainly support the need to prevent certain sensitive, personal, classified, or law enforcement information from being disclosed under FOIA,” Udall wrote in his letter. “But I also believe it is extremely important that we do not attempt to protect our citizens by lying to them.”

Under the new regulation, government officials could simply tell citizens that the records they’re looking for don’t exist, when in fact the records do exist. A “no record” response, writes Udall, is very likely to head off any further inquiry. Yet all parties would know that the “no records” response could well be a lie. The regulation would erode trust and rightly lead to legal action on the part of skeptical investigators of all stripes.

Udall suggests an alternative approach drafted by government watchdog and civil liberties groups– the ACLU, Citizens for Responsibility and Ethics in Washington (CREW) and Open The Government— where government agencies could instead simply inform requestors that the documents they seek, if they exist, “are not subject to the disclosure requirements established by the Freedom of Information Act.”

Such an approach would be effective as well as “truthful and informative,” writes Udall.

Concerns expressed among the public, media and watchdog organizations prompted the justice department to keep the comments period on the proposed regulation open longer than planned. That period closed last week. Udall’s letter is a personal response aimed to throw additional weight behind calls to rethink the new regulation.

The history behind the debate is one of tug of war between the right to information and the need to protect government sources and secret investigations. It’s also a history of the battle to ensure that checks and balances between branches of government can operate effectively.

Criminal organizations, for example, have worked the FOIA system for years. They submit information requests and, based on the varied responses of the government agencies, try to uncover the identity of informants. A “No records exist” kind of response regarding, say, a “Johnny Fingers” would mean Fingers was no snitch. A “Will not confirm or deny” kind of response regarding, say, a “Leftie Knuckles” would suggest Knuckles couldn’t be trusted.

Yet, in the post-9/11 era, government agencies have become increasingly brash in denying information to all sorts of requestors– including those with no intention of whacking informants– and in flatly lying to requestors and to judges tasked with reviewing paper trails meant to detail the reason for request denials.

In a case heard this past spring titled Islamic Shura Council of Southern California, et al. v. FBI, the FBI lied to the plaintiffs about the existence of documents and then lied to the district court judge as well. When the fact came out that the documents did exist, it was clear that judicial review of national security document hoarding had been seriously eroded.

As the judge in the case put it, the information the FBI delivered to the court was “blatantly false.” It was a fundamental breech in accountability laws, he said.

“The Government’s… submission raised a very disturbing issue,” the district judge wrote. “The Government asserts that it had to mislead the Court regarding the Government‟s response to Plaintiff’s FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court. The United States Constitution entrusts the Judiciary with the power to determine compliance with the law. It is impossible for the court to determine compliance with the law and to protect the public from Government misconduct if the Government misleads the Court. The Court simply cannot perform its constitutional function if the Government does not tell the truth.”

If 16.6 is accepted the way it stands, the kind of legal breech on display in Islamic Shura would be written into standard procedures.

Below view Udall’s letter to Attorney General Holder and a fairly comprehensive brief on the matter filed to the Department of Justice by the ACLU.

Letter to Attorney General Holder on the Freedom of Information Act