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Nov 28 2011

Fed. Judge Rips FBI For Lying

A federal judge has sanctioned the FBI for lying to the court in a FOIA lawsuit. The agency had claimed that they didn’t have any more documents that were germane to the request, but then they were forced to turn over more documents to the judge in camera. And the judge didn’t take very kindly to that.

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)…

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.

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.”

The problem is that none of this actually does anything to deter the same behavior in the future. Why would the DOJ care that it has to pay out some taxpayer money? Throw the FBI director or Eric Holder in jail for a while and they’ll get the message.

27 comments

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  1. 1
    reverendrodney

    What effect do sanctions have?

  2. 2
    den1s

    page 12 of the ‘later opinion’

    ‘Nevertheless, attorneys and parties cannot “avoid the
    sting of Rule 11 sanctions by operating under the guise of a pure heart and empty head.”
    Zuniga v. United Can Co., 812 F.2d 443, 452 (9th Cir. 1987). ‘

    … the pure heart and empty head defense….. that sure sounds familiar somehow

  3. 3
    Phillip IV

    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.

    “I reject your reality and substitute my own”, raised to the level of a legal argument. Impressive.

  4. 4
    Michael Heath

    Ed argues:

    Throw the FBI director or Eric Holder in jail for a while and they’ll get the message.

    Taking an oath to defend the Constitution is effectively meaningless if there are no legal repercussions for demonstrably failing to do so. Since President Nixon’s pardon, and probably prior, the lesson politicians learn is that fealty to the Constitution is the least of their concerns. The second lesson being to never raise taxes on the bulk of voters. Both are doing the country only harm yet the majority of voters continue to reward them for these behaviors.

  5. 5
    Hercules Grytpype-Thynne

    I notice that the plaintiff in this case is the “Islamic Shura Council of S. Cal.” This must be another one of those “creeping sharia” cases we’ve all heard about. Look for it to be listed in the next CSP report.

  6. 6
    D. C. Sessions

    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.

    But the FBI is charged with protecting us from terrorists! This is obviously a higher priority than ritual observance of some legal technicalities.

  7. 7
    Bronze Dog

    I’d certainly favor jailing Eric Holder for perjury and/or contempt of court.

    If anyone complained it’d disrupt FBI operations, I’d tell them to blame the FBI for the FBI’s unlawful and subversive behavior. It’s not the judge’s fault they were trying to undermine the checks and balances. It’s the FBI’s fault for provoking an unnecessary legal battle by doing so. You don’t blame the judge for the sentence, you blame the lawbreaker for doing something worthy of that sentence. I just wish they came out of it with more than a slapped wrist.

  8. 8
    Marcus Ranum

    Financial sanctions amount to moving money from one pocket to another. The entire chain of command responsible for perjuring one branch of the department of justice ought to be unemployed. Hey, they could join #OWS.

  9. 9
    reverendrodney

    Bronze Dog @7:
    “I just wish they came out of it with more than a slapped wrist.”

    Then I take it that sanctions are no more than slapped wrists.

    I agree with Ed that the FBI director or Holder should be thrown in jail. Holder moreso.

  10. 10
    Marcus Ranum

    Taking an oath to defend the Constitution is effectively meaningless if there are no legal repercussions for demonstrably failing to do so.

    “Oaths” are this quaint idea that if you say you’re going to do something, and lie, you’ll go to hell when you die. Since apparently all these guys are rational atheists, it carries no weight at all. Indeed, I remember reading somewhere that so many people lie under oath that it’s only reasonable to distrust any testimony that comes from a human (that’s not based on some kind of evidence) i.e.: “I saw bill shoot bob” shouldn’t carry any weight at all, the only thing that would matter is if the bullet dug out of bob matches bill’s gun, bill was observed by video camera surveillance shooting bob, etc. The whole notion of “oath” ought to be expunged from the legal system: don’t trust, just verify. In fact, that’s pretty much what it’s heading to.

    The flip side of that is that, yes, there should be consequences for gambling that you could offer false testimony without getting caught. If there’s no consequences in the real-world here and now it makes as much sense as an atheist threatening another atheist with hell. *Snicker*. I am guessing that *snicker* was probably the FBI’s reaction. And it probably still is.

    Imagine being ordered to spank yourself.

  11. 11
    Didaktylos

    Send Holder to prison for three days, no segregation. Announce that whichever inmate kills Holder gets a pardon and a pension.

  12. 12
    Physicalist

    Throw the FBI director or Eric Holder in jail for a while and they’ll get the message.

    Hear, hear!

  13. 13
    abb3w

    Monetary sanctions against individuals, rather than the organization, might also be effective as a deterrent.

  14. 14
    whheydt

    Re: #10. I keep wondering what would happen if a witness called in a court case declined to either swear or affirm to tell the truth. Icing on the cake would be to explain, as someone who does not accept the unproven existence of the supernatural, the oath or affirmation can’t possibly be binding, and from what one knows of court procedure, the rules actually bar one from answering questions with “the whole truth”, forcing the witness to violate the oath especially if the oath is believed to be binding.

    Any lawyers in the house?

    –W. H. Heydt

    Old Used Programmer

  15. 15
    Bronze Dog

    I’m no expert on politics, but I do get the impression that in these circumstances, sanctions would be a slap on the wrist, in part because I suspect the FBI’s attitude is that they can always get more taxpayer money, and because there isn’t any personal stake.

    If you were to incarcerate individuals for their part in subverting the checks and balances, that might help to break up the groupthink that otherwise removes individual accountability for bad decisions. If you had individuals fearing a jail sentence for possible wrongdoing, they might actually stop and ask themselves if what they’re doing is legal and ethical instead of just going with the flow.

  16. 16
    Marcus Ranum

    Considering that we’ve got people admitting that they broke our own laws on something like torture, what’s a little bureaucratic perjury?

    Next time I hear some american pol lecturing about how other countries need to follow the rule of law, I’m going to puke.

  17. 17
    Marcus Ranum

    Throw the FBI director or Eric Holder in jail for a while and they’ll get the message.

    That wouldn’t hurt them as badly as just being fired.

    The single biggest thing that would help turn the USA around from the power-dive that it’s in is to change the “nobody gets fired from the government” to “you screw up and you’re out” You’d think all the right-wingers who like to see the social safety net removed would be all in favor of seeing the “I’m a government bottom of the barrel employee who can’t be fired” safety net removed. The whole management chain at FBI that made that mistake should be unemployed right now.

    Hell, can we just outsource the FBI to some fly-by-night web-based start-up in some country where wage-slave labor is cheap? That’d do a lot to protect our democracy AND save money AND reduce the size of government – with one fell swoop. Any tea partiers listening?

  18. 18
    Bronze Dog

    Don’t get me started on torture. If we can’t even stop an administration from torturing people being held indefinitely without charge, what’s going to stop the government from perjuring itself for the sake of convenience?

  19. 19
    Bronze Dog

    Firing: I’d be just as happy to see corrupt officials kicked out onto the street without anything resembling a severance package. Though one problem I imagine is that someone else is going to offer them a new job right away.

  20. 20
    Marcus Ranum

    magine is that someone else is going to offer them a new job right away.

    Well, that’s the flip side of the “nobody gets fired from the government” because, for a while, everyone would think that anyone who managed to get fired from the government had to be epic supermassive black-hole level incompetent, or corrupt. Or both. Which, in this case, would be about right.

  21. 21
    Stevarious, Public Health Problem

    Well, that’s the flip side of the “nobody gets fired from the government” because, for a while, everyone would think that anyone who managed to get fired from the government had to be epic supermassive black-hole level incompetent, or corrupt. Or both. Which, in this case, would be about right.

    Ah, but they wouldn’t be hired for their ‘competence’. They’s be hired for their corruption – that is, they would be hired for their extensive knowledge of the FBI’s dirty laundry.

  22. 22
    dreikin

    Throw the FBI director or Eric Holder in jail for a while and they’ll get the message.

    “Never admit to anything”.

  23. 23
    Marcus Ranum

    They’s be hired for their corruption – that is, they would be hired for their extensive knowledge of the FBI’s dirty laundry.

    Every time I think that I’m as cynical as it’s possible to be, someone comes along and schools me. Yeah, you’re right. I hadn’t thought of that.

  24. 24
    Stevarious, Public Health Problem

    Every time I think that I’m as cynical as it’s possible to be, someone comes along and schools me. Yeah, you’re right. I hadn’t thought of that.

    This is, of course, assuming that the most corrupt FBI employees aren’t already selling this information to the highest bidder.

    This is, of course, assuming that the people managing the FBI aren’t creating the dirty laundry intentionally to simply have something to sell to the highest bidder. How easy would it be to generate controversy by breaking the law, then make a few bucks on the side being an ‘anonymous source’, reporting your own malfeasance? When the only thing that can get you fired is naming names, there is literally no depths you couldn’t sink to.

    This is, of course, assuming that the stuff that gets ‘leaked’ isn’t intentionally leaked by everyone involved, to distract us from the really evil stuff they are doing… How easy would it be for them to use, say, ‘Operation Fast and Furious’ to cover up some really dirty goings-on? After all, who keeps digging after they’ve found gold?

    This is, of course, assuming that the government is secretly much more competent then they seem to be. Which, on it’s surface, seems like a leap… but they have managed to stay in power for an awfully long time… How do we know it isn’t all an act?

  25. 25
    democommie

    I haven’t seen, nor do I intend to see, the Jedgar biopic with Leonardo DiCaprio.

    Someone I knew saw it the other night and said it was very well done. I asked him if they showed Hoover to be the complete scumbag that he was. He was confused by the question.

    Lavrente Beria could have learned a thing or two from Hoover.

  26. 26
    birgerjohansson

    Hoover was forced to be more cunning than Beria since he could not simply shoot anyone that knew too much, or had the wrong opinions. He had to discredit them instead. The presidents were presumably happy with Hoover since his corruption (breaking all the rules he had set up himself) meant that they had something to hold over him…and at the same time he knew a lot of dirt about them.
    This way he stayed loyal and the presidents did not fire him. Scratch my back and I will scratch yours.

  27. 27
    RH

    Here is a new idea:
    Attempting to circumvent the division of powers in the constitution by lying to the court while acting as an agent of another branch of government constitutes Treason.

    Try individuals involved for treason or conspiracy to commit treason.

    That should change their idea of what should be SOP.

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