Appeals Court Says Government Doesn't Have To Disclose Contents Of Its Secret Terrorist Organization List

from the terrorist-farm-teams-or-something dept

An attempt to force the government to reveal its secret list of terrorist groups has been shot down by the Seventh Circuit Court of Appeals [PDF]. The Heartland Alliance Immigrant Justice Center’s FOIA request for “Tier III” terrorist groups can remain unfulfilled. [h/t Brad Heath]

Without giving too much away (and neither the court nor the government does), “Tier III” is apparently more nebulous and fluid than tiers I and II.

Tier I and Tier II organizations are publicly identified terrorist groups such as ISIS and al?Qaeda. Tier III organizations are defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as any group of two or more people that engages in terrorist activity (as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)), even if their terrorist activity is conducted exclusively against regimes that are enemies of the United States. Tier III organizations tend to have a lower profile than Tier I’s or Tier II’s, not only because the government does not publish their names but also because they tend to be groups about which the U.S. government does not have good intelligence, making it essential that the Department be able to obtain information about them during screening interviews that are as focused and complete as possible.

The government withheld this info under FOIA 7(E), which covers “techniques and procedures for law enforcement investigations or prosecutions.” As the government argued, divulging these “groups” of two or more possible terrorists would likely allow screened immigrants to hide their involvement in these groups.

[A]s explained in the government’s brief, “an alien who becomes aware that a particular organi?zation has been found to fall within the definition of a Tier III organization will have a very strong incentive to falsify or misrepresent any and all encounters, activities, or associations that he or she may have had with that organization.” If the alien doesn’t know that a terrorist organization that he has belonged to, been affiliated with, or maybe simply has provided supplies or money to, has been identified by our government as a terrorist organization, he is likely to be less guarded in answering questions about his activities in or associations with the organization. But if he knows that the organization he belonged to or was associated with is deemed a terrorist organization, he is likely to deny having ever had any connection to it or even having ever heard of it.

The Justice Center pointed out that the government’s fear of slippery foreigners might be overstated. After all, members of terrorist groups — whether publicly acknowledged by the government or not — would be just as likely to lie about their affiliation even if privy to the contents of the Tier III list.

The Appeals Court doesn’t think much of the Justice Center’s counterargument, positing that any interrogation predicated on the Center’s assumptions would be a “dumb interrogation.” In the eyes of the court, the government’s secrets allow it to more gracefully handle questionings, allowing it to tease out affiliations detainees would otherwise be unwilling to disclose.

The court isn’t much kinder to the Justice Center’s speculations about the contents of the Tier III list.

We learn in the Center’s reply brief that its primary concern is not with names but with the Tier III category itself, for it says for example that “the designation of Tier III organizations is often doubtful.” It hopes that if it can obtain the names of all the organizations—its goal in this litigation—it will be able to discredit some or perhaps many of them. Deeply distrustful of the U.S. government, by the tone and content of its briefs the Center signals its disbelief that the government has secrets worth keeping from asylum seekers and their helpers (such as the Center), but it does not explain what the government would gain by pretending that harmless organizations are actually terrorist groups.

The court does give the government a bit more credit than it deserves. It’s not so much that the government would try to gain something by designating harmless groups as terrorist organizations. It’s that government agencies have shown a willingness in the past to designate political groups they don’t like as enemies or criminals, subjecting them to unlawful surveillance and other rights violations.

The concurring opinion raises another concern — one that the court finds bolsters the government’s secrecy assertions, but one that could also be read as a call for more scrutiny of this particular list.

At oral argument, the government noted plausible foreign relations grounds for the government withholding this information under other FOIA exemptions. Specifically, it noted that U.S. government relations with Tier III organizations might change on short notice, and that revealing certain Tier III organizations might have foreign policy ramifications. What one day might be an allied Christian militia fighting against the Islamic State (ISIS) might the next day be our nation’s enemy, and while not rising to the level of a Tier I or II organization, might fall under Tier III. All of this suggests that the government has, in our nation’s FOIA law, adequate alternative claims for exemption that it chose to avoid, so there is no need to broadly construe 7(E).

The unasked question is this: if alliances shift, does the government immediately release detainees affiliated with groups the government has arbitrarily decided are now the nation’s allies? Or do they just sit around forgotten in detention centers while the government moves organization names on and off the list? Who knows. The opinion suggests this is a problem for Congress to solve — either by scaling back the scope of the FOIA exemption or by actually using its oversight powers to periodically review the Tier III list.

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Comments on “Appeals Court Says Government Doesn't Have To Disclose Contents Of Its Secret Terrorist Organization List”

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Anonymous Coward says:

Re: Re: Re:

Actually, unless James Clapper has redefined the word “two” to mean “one”,

Do you not speak to at least one other person more than once? Because they do not name the terrorist groups, they can call anyone a terrorist, and then use that to call anybody that person has met or associated with a terrorist.

garner says:

Corrupt Courts

Exactly. Our Federal government is constructing a secret “justice system” apart from the normal, Constitutional system.

This is outright tyranny. And obviously our formal legal system & government judges don’t object to it. The U.S. Supreme Court fully endorses the outrageously non-Constitutional FISA secret court.

Government judges (legal bureaucrats) will not protect your rights nor restrain government — those judges come from exactly the same political class as Congressmen & Presidents who are trashing the Constitution— they think alike. Power corrupts.

This is what a budding Police State looks like.

Anonymous Coward says:

Re: Corrupt Courts

“This is what a budding Police State looks like.”

You are wrong, this is what a Police State IS. It is not budding, it has already budded. The moment a law becomes secret, or a court become secret is the moment that a police state has arrived.

All we are looking at now is how much muscle they are willing to flex and how long we will be willing to endure it.

The police can murder you, the state can take your rights away by calling you a terrorist, the entire legal system is corrupt to the point were a fair trial cannot be had. You either buy your freedom and liberty or it perishes upon accusation.

Quiet Lurcker says:

Reading the above, I thought at first that maybe – just maybe – the government might for the first time in my memory have a good reason for keeping a secret.

Then I read further and realized, the government was – once again – trying to hide the fact that it did and does screw up by the numbers more or less all the time.

Sad, really, that the court fell for it.

Anonymous Coward says:

Re: Am I reading that right?

The government argues that terrorists will be more forthcoming about their terror plans if they aren’t publicly labelled terrorists?

Not quite. The government claims that terrorists will be more likely to admit that they belong to a terrorist group if they aren’t aware said group is a terrorist group. Or that they themselves are terrorists.

Padpaw (profile) says:

Re: Re: Am I reading that right?

I imagine that most who believe in their constitutional rights would be shocked to find out that makes them an enemy of the US government. Since apparently only terrorists support such “anti freedom” notions. While true patriots blindly do and believe only what their governments tells them to do and think.

Lesath says:

If alliances shift, does the government immediately release detainees?

No. As pointed out earlier in the article, the designation even applies to people whose “activity is conducted exclusively against regimes that are enemies of the United States.” That would apply even to people acting with the blessing, aid and encouragement of the US government. “Either you’re with us or against us. Either way, you loose.” Yeah, no wonder the US government a trust problem these days.

That Anonymous Coward (profile) says:

We don’t have enough information about these ‘Quakers’ so we won’t admit we have them on a secret list so they won’t lie to us about being ‘Quakers’. We are so stupid we trust what they tell us when we think they are terrorists, because when you pledge to be a terrorist you also pledge to always tell the truth….

We should make politicians declare themselves as terrorists in that case.

This is more of the stupid brain dead pandering that we need to collect more so we don’t miss anything, and we are far more lost in the haystack than we were before.

Perhaps if we stopped tying bonuses to ‘results’ they would stop inventing them and turn down the firehose of data so they could see actual terrorists and not just mentally challenged people they conned into saying they love ISIS so they could get good coverage.

The secret courts & secret laws & secret interpretations are poison destroying the country. We need to end them, and stop pretending that as long as we don’t admit it we are just as bad as those we are pursuing we’re still the good guys. Some dictators would LOVE to have people snatched from other countries and placed in black sites everyone can disavow if people find out about the torture there.

Perhaps the question we need to ask Congress is when did they decide we should cross those lines & lie about it. If you are proud of what you are doing, why hide it?

Anonymous Coward says:

designate political groups they don't like as enemies

Like MLK or John Lennon for example.

Given past history it isn’t unreasonable to expect that anyone who has been vocally critical of the FBI is on a purge list somewhere.

Which is why it would be nice if Google clarified why they did this?

Google is so broadly integrated on the server side, that I doubt even most of the web admins who use their analytics features have a clear understanding of how much tracking is going on.

The thing is, when you’re on Facebook you KNOW your being tracked. Googles tracking is integrating into third parties sites with no such login requirement. Techdirt, incidentally happens to be one of of their aggregators. ctl-u and ctl-f "google" and take a look if you don’t believe me.

Anonymous Coward says:

Re: designate political groups they don't like as enemies

Techdirt, incidentally happens to be one of of their aggregators. ctl-u and ctl-f "google" and take a look if you don’t believe me.

I tried this, and I did find several Google references, but they were all in JavaScript that was blocked by NoScript, so the tracker doesn’t work for me. I guess I’ll have to enable JavaScript if I want Google to start tracking me.

Coyne Tibbets (profile) says:

Tier III is big

Of course they don’t want to list Tier III: it includes every organization that isn’t in Tiers I & II.

Some might object I left the word “terrorist” out of that statement but I didn’t. I figure that, on the theory everyone is a terrorist, Tier III is all the organizations they identified but don’t have proof of terrorism activity yet. It’s the suspect list…and that list includes everyone.

Darn straight they don’t want to list it: 7+ billion names takes a lot of paper.

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