Subject: Fw: Ashcroft says DOJ employees can break law & withhold FOIA
----- Original Message -----
From: KDWeber
At Justice, Freedom Not to Release Information
http://www.washingtonpost.com/wp-dyn/articles/A58419-2002Nov30.html
The decision by officials under Attorney General John D. Ashcroft,
center, not to release records on criminal investigations and how they relate to
terrorism concerns Sens. Charles E. Grassley, left, and Patrick J. Leahy. (Ray
Lustig -- The Washington Post)
By James V. Grimaldi
Washington Post Staff Writer
Monday, December 2, 2002; Page E01
Today, at the Justice Department, some laws are more equal than others.
One 36-year-old U.S. law can be broken, it seems. Attorney General John D.
Ashcroft, who is sworn to enforce all laws, has told federal employees that they
can bend -- perhaps even break -- one law, and he will even defend their actions
in court.
That law is known as the Freedom of Information Act.
Last October, the Justice Department cited the Sept. 11 attacks in a memo to
federal FOIA officers that stated, "When you carefully consider FOIA requests
and decide to withhold records, in whole or in part, you can be assured that the
Department of Justice will defend your decisions."
That memo superseded Attorney General Janet Reno's memo of 1993 that told FOIA
officers to presume government documents are public. Citing the D.C. Circuit
opinion Hemenway v. Hughes, Reno urged care to make sure that the government "is
not unduly limiting the records found responsive to those requests."
It is not that the Reno Justice Department was particularly enamored with FOIA.
But at least attorneys didn't have carte blanche to disregard the law. It is
under this new Ashcroft dictum that we review the latest appalling turn in the
long-running FOIA battle between the Justice Department and database
investigators David Burnham and Sue Long.
Burnham, a legendary investigative reporter, teamed up with Long, a
statistician, in 1989 to create Transactional Records Access Clearinghouse (TRAC)
at Syracuse University to collect and analyze government data. TRAC is an
incredibly useful tool to monitor the basic functions of government. It includes
such things as the number of cases referred by the FBI to U.S. attorneys'
offices around the country. It is one way to gauge the effectiveness of the
front line of federal law enforcement in the United States.
(Full disclosure: The author of Hearsay, through his affiliation with
Investigative Reporters and Editors, also advocates for public-access issues.
IRE often features Burnham as an unpaid speaker at its conferences.)
Some of TRAC's most frequent users include networks and newspapers, such as The
Washington Post, public interest groups -- from Common Cause to the National
Rifle Association -- and Congress, particularly the Senate Judiciary Committee.
"TRAC data is important and useful information for Congress to conduct its
constitutional responsibility of oversight," Sen. Charles E. Grassley (R-Iowa)
told Hearsay last week.
Five years ago, the Reno Justice Department stopped providing data to TRAC. The
organization sued and the Justice Department settled out of court. Then the
department reneged. TRAC sued again. The case is pending.
Meanwhile, the data were used to spotlight how the Clinton administration was
pushing for new gun laws when its own enforcement of existing weapons laws was
falling precipitously. Then-Deputy Attorney General Eric H. Holder Jr. employed
a tactic that many Justice Department lawyers have tried over the years: He
attacked the data as wrong. But internal records, released after the 2000
election, showed that the Justice Department knew the data were correct.
Fast forward to 2001. After the Sept. 11 attacks, TRAC data revealed that U.S.
attorneys around the country had declined to prosecute a large proportion of
terrorism cases referred by the FBI and other agencies. The Philadelphia
Inquirer took the data, went to the courthouse and found the terrorism
indictments brought really weren't terrorism cases at all.
Such embarrassments apparently have continued to upset Justice Department
bureaucrats. In March, Teresa Davis of the Executive Office of U.S. Attorneys
wrote that monthly FOIA requests for data would be delayed to make sure
releasing data did not "jeopardize the department's counter-terrorism efforts or
threaten national security."
Nevertheless, the Justice Department released the data in April. It wasn't a
pretty post-Sept. 11 picture, at least not to Senate Judiciary Chairman Patrick
J. Leahy (D-Vt.) and Grassley. "The information raises troubling questions about
whether the FBI and Department of Justice are devoting sufficient resources to
counter-terrorism efforts," the senators wrote in June, "whether the FBI
continues to dedicate valuable resources to crimes [such as bank robberies] that
other agencies are equipped to handle; how well the FBI conducts terrorism
investigations; and what the FBI is doing with its intelligence and analysis
personnel."
Around Halloween, TRAC received a letter from the Justice Department rejecting
the release of records of ongoing criminal investigations, which it said could
interfere with anti-terrorism investigations and endanger lives. On its face,
such a denial might seem reasonable, except that the information TRAC gets is so
vague and incomplete that it would be impossible to ascertain any specific
cases, suspects or investigations.
Leahy and Grassley also aren't buying the Justice Department's arguments for the
decision to suddenly stop releasing the data. They see it as part of a twofold
attack on TRAC. "First, the department has attacked the validity of the data,"
the senators wrote. "Second, it is simultaneously trying to cut the flow of
information that can be used by TRAC and the public to evaluate the Department
and the FBI's performance."
Grassley asked the Justice Department to reconsider its FOIA response.
"Bureaucrats may not like being held accountable for their actions, but that
doesn't mean they can withhold information to cover up what they're doing or not
doing," Grassley said.
Justice Department bureaucrats, with Ashcroft's blessing, are trying to muzzle
the watchdogs. For that reason, Hearsay presents its annual Turkey Award to
those bureaucrats. The FOIA officers, through spokesman Mark Corallo, said there
is justification for their actions. "Information that may seem innocuous to the
average person, may in fact provide a great deal of guidance about the direction
of our investigations to criminals or terrorists," Corallo said.
Burnham warns that the shutdown of the flow of information comes at a time when
the federal government has been handed remarkable and historic new powers of
investigation. "I am truly fearful we are going to see a lot more of this
stuff," Burnham said.
Your Letters
As you enjoy those Thanksgiving leftovers, we have some second helpings from our
last column on how the high cost of law school tuition debt deters graduates
from going to work for the government and nonprofit groups. Here are those
letters:
"I would count myself among the 66 percent of law students who would not
consider a career in government or public interest because of law school debt.
"When I graduate from my prestigious private D.C. law school, I will have well
over $100,000 in debt. So, like many others, I will be effectively precluded
from working in the government, instead forced to join the drones in the large
downtown litigation factories.
"I have a passion for constitutional law and policy and would be happiest if I
were to be able to proudly serve my country by finding an advisory position in
the legal department of some branch of the federal government. Some of my
classmates dream of helping the homeless, or low-income immigrants, or
underrepresented minorities. It is unfortunate that because of rising tuition
costs and lack of financial support from the government, none of us will be able
to chase those dreams. At least we can find comfort in knowing that we won't be
stuck with the rest of you on the 14th Street Bridge at 5 p.m. on weekdays. We
will be in our offices for another four or five hours."
-- Scott Claffee, Washington
"When I graduated law school in 1993, the starting salary for a lawyer in the
federal government was around $32,000, or roughly $2,000 more than I had made
while I was a paralegal at Arnold & Porter (including overtime). Nonetheless, I
took a job at the Federal Trade Commission. The only reason I could do so was
that my husband was earning enough to supplement my income.
"The worst part of this is that Congress has known for years of the
discrepancies and the potential problems, yet has refused to implement the law
that would reduce the differential. Because of this and the many other ways in
which federal employees are treated as necessary evils rather than the
hardworking people who care about their jobs, the brain drain will only
continue."
-- L.G. Thompson, Arlington
"Luckily I was able to 'afford' to work for the government. However, I am not
making enough to pay off student loans, save for a house and basically get on
with my life post-law school.
"While the Federal Energy Regulatory Commission offers a loan repayment program,
it is hardly worth it. You are only able to get a maximum of $6,000 in a
calendar year or $40,000 over an employee's life time. That money is also
considered taxable income, so you wind up with even less than the paltry $6,000.
"I can sympathize with grads not wanting to work for the government."
-- Diane Young, Alexandria
And Furthermore
William R. Baker III, an associate enforcement director at the Securities and
Exchange Commission, is leaving the turmoil-engulfed agency. In 15 years, Baker
has handled high-profile cases, including, most recently, the WorldCom Inc.
investigation. He will take time off before deciding what to do next, but look
for him to land at a prominent law firm locally.
Hearsay files FOIAs every other week in Washington Business. Send your rejection
letters to hearsay@washpost.com.
© 2002 The Washington Post Company