DHS Extremist FOIA Request by HStoday

[comsec]

I find this very disconcerting and troublesome:

http://www.hstoday.us/content/view/8993/150/

DHS Records on Right-Wing Report Denied Under FOIA Indicate Civil Rights Issues
by Anthony L. Kimery
Thursday, 18 June 2009
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734 pages related to civil rights office objections declared exempt
Apparent violations of the Department of Homeland Security’s (DHS) Office of Civil Rights and Civil Liberties' procedures for the handling of the department's controversial threat assessment of “right-wing” extremists are indicated in DHS’s “final response” last week to HSToday.us’s April 16 request under the Freedom of Information Act (FOIA) for all of the civil rights office's records concerning its objections to the assessment.

Descriptions of some of these documents that DHS deemed exempt from public disclosure under the FOIA imply that concerns that were raised by the Office of Civil Rights and Civil Liberties may have been more egregious than have been publicly acknowledged, and tend to dovetail with communications about these concerns between Homeland Security Secretary Janet Napolitano and House Committee on Homeland Security Chairman Bennie Thompson (D-MS).

"The wheels came off the wagon because the vetting process was not followed," Napolitano told the Committee on May 13 during a hearing on DHS's FY 2010 budget request. "An employee sent it out without authorization," she stated.

Based on the descriptions of some of the Office of Civil Rights and Civil Liberties documents pertaining to the report that are contained in DHS's denial of these records under the FOIA, it does seem evident that someone violated procedures for releasing the assessment despite the office's concerns.

Prepared by DHS's Office of Intelligence and Analysis (I&A) with assistance from the FBI, the threat assessment, Right-Wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment, was wrongly disseminated to law enforcement agencies.

Napolitano acknowledged after the report was made public that the unresolved problems with it that had been identified by the civil rights and civil liberties office were supposed to have prevented it from being distributed.

According to a DHS source familiar with the matter, it's the source's understanding that at least one department employee was reprimanded over the dissemination of the report and that the apparent descriptions of an employee legal issue related to the assessment that's in some of the withheld records has to do with that scolding.

At the May 13 DHS budget hearing, when asked whether the employee who incorrectly distributed the threat assessment had been fired, Napolitano said "appropriate personnel action is being taken."

“My question is this,” the DHS source said early Thursday morning, "if someone, as seems to be the case, deliberately and knowingly sent out this flawed report in violation of the procedures for doing so, then to me it begs the question of whether their intent was politically motivated. And that, in turn, leads me to ask how much politicization is going on around here. It’s a legitimate question, in my opinion."

The assessment drew widespread condemnation over wording critics complained could be construed to imply that individuals who subscribe to certain conservative thought are more prone to terrorist acts against the government. Some bloggers even proudly insisted that the document was a sloppy forgery because no such document would carry the two classifications, "For Official Use Only" and "Law Enforcement Sensitive." But it did, and other DHS threat assessments and advisories do.

That the assessment was flawed is evident. The Major Cities Chiefs Association said in a statement to Thompson that the "document ... was poorly researched and produced, deeply flawed and an embarrassment to the Department of Homeland Security."

Napolitano apologized for how the report could be interpreted and said that a new threat assessment would be drafted.

Regardless of the civil rights and civil liberties problems that seem to have taken place during preparation of the assessment, there is a right-wing extremist danger in the country that DHS must address, as was tragically illuminated in recent weeks. As HSToday.us reported in March, federal law enforcement and intelligence officials have been correctly concerned for a while now over the up tick in truly right-wing extremist activity.

DHS's discredited threat assessment probably drew more scorn than it would have had its disclosure not come on the heels of the exposure of another widely discredited and retracted assessment of right-wing extremism produced by the Missouri Information Analysis Center.

According to DHS Acting Departmental [FOIA] Disclosure Officer Vania Lockett’s two-page response to HSToday.us’s FOIA request, 734 pages of Office of Civil Rights and Civil Liberties’ materials were identified that pertain to its objections to the I&A threat assessment.

All 734 pages were deemed to be exempt from disclosure under the FOIA.

But in DHS’s denial of the records were indications that an undisclosed number of the withheld documents relate to possible violation(s) of law or other legal problems associated with the preparation of the assessment and its distribution.

When the furor over the report first erupted, DHS spokeswoman Amy Kudwa told reporters that the Office of Civil Rights and Civil Liberties “did object to a part of the document, which was not resolved before the product went out. This was a breakdown of an internal process that we will fix in the future.”

DHS officials have declined to discuss any of the details regarding the objections or to even confirm whether Napolitano was made aware of the objections when she was briefed on the report prior to its dissemination to law enforcement agencies on April 7.

Some of the Office of Civil Rights and Civil Liberties materials that were denied HSToday.us under the FOIA were described as confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice and “applies to facts divulged by a client to his attorney, and encompasses any opinions given by an attorney to his client based upon, and thus reflecting, those facts, as well as communications between attorneys that reflect client-supplied information,” Lockett wrote.

Other materials that were determined to be exempt from the FOIA are “records compiled for law enforcement purposes, the release of which would disclose techniques and/or procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”

Other exempted materials were described as documents "applicable to internal administrative and personnel matters, such as operating rules, guidelines, and manual of procedures of examiners or adjudicators," and information involving other "internal administrative personnel matters ..."

Lockett’s denial of HSToday.us’s FOIA request stated that “the three most frequently invoked privileges are the deliberative process privilege, the attorney work-product privilege and the attorney-client privilege. After carefully reviewing the responsive documents, I determined that the responsive documents qualify for protection under the deliberative process privilege and the attorney-client privilege.”

Government FOIA explanatory materials say the FOIA attorney-client communications exemption under the FOIA was meant to protect communications made in confidence to an agency attorney as well as that attorney’s responsive legal advice. In order to qualify for this privilege, an agency must prove that it communicated to an attorney in the same manner “as would any private party soliciting legal advice to protect his or her legal interests.”
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The attorney work product exemption was designed to specifically address the protection of materials involving the opinions and “mental impressions of an attorney” that were “prepared in anticipation of litigation.”

In April, Rep. Peter King (R-NY), ranking member of the House Committee on Homeland Security, said his “staff’s ongoing internal investigation [had] shown that the Office of Civil Rights and Civil Liberties did, in fact, weigh in on the report and voiced several concerns about its contents, but [that] not all the recommended changes were included ...”

According to King, "the Office of Intelligence and Analysis made changes to the report based on input" from the Office of Civil Rights and Civil Liberties, but that "not all of the recommended changes were included prior to dissemination of the report."

“This intra-departmental disconnect is disturbing,” King declared, adding, "this committee must learn all the facts about how this report was developed, researched and approved."

Expressing his own concerns, Committee Chairman Thompson reminded Napolitano in an April 14 letter that following the Committee's Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment hearing, “The Future of Fusion Centers: Potential Promise and Dangers," on April 1, that "our members came away from the hearing confident that the Department's Office of Civil Rights and Civil Liberties has successully partnered with I&A to develop and deploy an increasingly effective privacy and civil liberties training program at fusion centers."

"Given this positive collaboration," Thompson wrote, "I am dumfounded that I&A released this report."

At the subcommittee hearing, Thompson said in prepared remarks that "if we don’t get the privacy and civil liberties piece at fusion centers right, we’ll see ...abuses. Homeland security intelligence and fusion centers can’t be in the business of assumptions – assuming every person wearing a trench coat is a robber; loitering on a corner is a drug dealer; or taking a picture of a monument is a terrorist."

Testifying at the subcommittee hearing, Robert Riegle, Director of DHS's I&A State and Local Program Office, said "we take the commitment to respect and protect the privacy, civil rights, and civil liberties of American citizens seriously. We partner with the DHS Privacy Office, the DHS Office for Civil Rights and Civil Liberties, and the Office of General Counsel to make sure that all of our efforts are consistent with our obligations to the American people. We require all I&A staff assigned to fusion centers to receive specific training and to have subject matter expertise on all relevant privacy, civil rights, and civil liberties issues. We do this as a matter of practice and as required by Section 511 of the 9/11 Commission Act."

Continuing, Riegle told the subcommittee that "we are equally committed to ensuring that all those working at fusion centers are fully cognizant of their privacy and civil liberties obligations. In December of 2008, the department conducted and published both a Privacy Impact Assessment (PIA) and a Civil Liberties Impact Assessment (CLIA) for the initiative."

Riegle said "the PIA made a number of specific recommendations that fusion centers can implement to enhance privacy. These include completing their written Information Sharing Environment privacy protection policies, and creating governance structures and procedures to protect privacy and to understand and implement the set of privacy protections called the Fair Information Practice Principles (FIPPs). These include protections related to data integrity, use limitation, data minimization, and others."

In response to Thompson's April 14 letter, Napolitano wrote that “the level of consultation between [the Office of Intelligence and Analysis] and the Office of Civil Rights and Civil Liberties was inadequate in this process” and that she was “particularly concerned that issues raised by the Office of Civil Rights and Civil Liberties were not resolved prior to the assessment's release.”

Acknowledging that there was a "lack of internal review," Napolitano outlined to Thompson "the steps I will be taking to fix the problem," and pledged “that [this] will not happen in the future.”

"Specifically," Napolitano told the Committee the assessment was disseminated by I&A without the agreement of the Office of Civil Rights and Civil Liberties," Thompson said in a statement.

Napolitano further informed the Committee that the clearance process for I&A intelligence products that had been in place since 2003 was insufficient. "There was a breakdown in the clearance process before ... distribution" of the threat assessment," she said in a letter to Thompson.

On April 23, Napolitano sent representatives to Capital Hill to brief both the majority and minority staff of the House homeland security committee and other committees as necessary.

According to Thompson, "they provided a clear description of what happened, what didn’t happen, and what will be happening to make things right."

On May 8, two days after King introduced House Resolution 404 - which would direct “the Secretary of Homeland Security to transmit to the House of Representatives, not later than 14 days after the date of the adoption of this resolution, copies of documents relating to" DHS's right-wing threat assessment - DHS provided the Committee with source material used by I&A to develop the assessment.

The Committee adopted the resolution less than two weeks later and on June 6 it was placed on the House calendar.

When contacted by HSToday.us for comment, Thompson and King’s offices said questions should be directed to House Homeland Security Committee staff. Telephonic requests for comment from the Committee staff went unanswered.

Other records DHS denied HSToday.us pusuant to its FOIA request were described as information about individuals the disclosure of which “could reasonably be expected to endanger the life or physical safety” of a person; materials concerning “physical security at critical infrastructure sites;” and “inter- or intra-agency documents that are normally privileged in the civil discovery context.”




Anthony L. Kimery
About the author:
Online Editor/Senior Reporter and HSToday eNewsletter Editor, is a respected award-wining editor and journalist who has covered national and global security, intelligence and defense issues for two decades.
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[nitrogen]

Meet the new boss, the same as the old boss.

[Purplehood]

That was an extremely disjointed article.

EDIT: Spelling.

[joe817]

That was an extemely disjointed article.

I agree. As I read through it, I thought are they trying to apologize without apologizing for violating our C.L.'s? They sure put a spin on it! Or was this a big "OPPPSS? Sorrryyyyyy, but you found out what you were not to find out about."

[comsec]

This is the age old dilemma of "Who's watching the watchers?" While I want to believe with some altruism that we have responsible personnel in these positions with continued vigilence to protect our lives, property, and cibil liberties, there is a continued decay into political expediency for the rulers of the roost.

Our political system was founded on dissent and distrust of government, now it continually morphs into a system of oppression and marginalization.

Both sides of the aisle and the Executive branch have stripped the safeguards of the Constitution and now the judiciary is following this course of perfidy.

No doubt my comments shall attract the attention of some *fusion center* who confuses patriotism with unlawful dissent (thoughtcrimes).

Doubleplusungood as I sip my Victory Gin waiting on the two minutes hate "of the week".