DHS Trying To Bury Report Showing Violations Of Travel Ban Court Orders By CBP Officers
from the neutralizing-oversight dept
An Inspector General’s report showing Customs and Border Protection violated court orders during its implementation of Trump’s travel ban appears to be headed for a burial by the DHS. A letter from the Inspector General to high-ranking senators says the department has indicated it will invoke an unchallengeable privilege to withhold large portions of the report, if not its entire contents.
The unusual missive to Congress on Monday from Inspector General John Roth said his 87-page report was sent to DHS leadership Oct. 6, but officials have declined to authorize its release over the past six weeks.
Roth said officials informed his office that the report is under review for information that may be subject to attorney-client privilege or to a privilege protecting the agency’s “deliberative process.”
The IG’s letter [PDF] makes it clear the invocation of “deliberative process” privilege is highly unusual in this context. It’s usually invoked in FOIA cases to withhold certain information. The problem with its invocation in the context of an IG report release is that it prevents anyone from challenging the DHS’s decision.
The deliberative process privilege is a common law privilege, largely invoked in Freedom of Information Act (FOIA) and civil litigation, which permits (but does not require) the government from disclosing predecisional and deliberative communications because of the potential chilling effect such disclosure would have on the candid deliberations and back-and-forth discussion that effective policy-making requires. However, invoking the privilege can mask discovery of decisions made based on illegitimate considerations, or evidence of outright misconduct.
For that reason, in civil litigation the privilege is not absolute but requires a court to balance the competing interests of the parties. This has been interpreted to mean that a party requesting the information may overcome the privilege by showing a “sufficient need for the material in the context of the facts or the nature of the case . . . or by making a prima facie showing of misconduct.” Unlike civil litigants, however, we are not able to have a federal court or other disinterested party decide these issues, but must rely on the good faith of the Department.
This leaves the decision entirely in the DHS’s hands and no one in the Inspector General’s office can do anything about it. Evidence of wrongdoing, it could be swept under the carpet by the DHS. It’s unclear what Congressional leaders can do it about this (or even how many of them would actually be interested in fighting the DHS’s privilege invocation), but at least the public is now aware evidence of court order violations is in the process of being memory-holed by the administration.
The report — at least what can be gleaned from the Inspector General’s letter — isn’t completely damning. It notes the implementation of the travel ban took place during several courtroom challenges and involved conflicting directives from White House and the DHS. Perhaps most CBP officers did the best they could during the disorganized chaos, but that still didn’t prevent key violations from occurring.
Roth said CBP defied court orders by providing guidance to airlines not to allow travelers from certain countries to board flights bound for the U.S.
“While CBP complied with court orders at U.S. ports of entry with travelers who had already arrived, CBP was very aggressive in preventing affected travelers from boarding aircraft bound for the United States, and took actions that, in our view, violated, two separate court orders,” he wrote.
As Politico notes, FOIAed communications show DHS officials were troubled by the continual lack of clear internal guidance, as well as contradictory statements made by White House officials. The court orders, however, were much more direct and clear and yet CBP officials violated them repeatedly.
That’s where the IG’s sympathies end. The DHS watchdog doesn’t hedge when it comes to addressing the report’s planned burial.
I am particularly troubled by the Department’s threat to invoke the deliberative process privilege, as this is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis. In fact, we regularly have published dozens of reports that delve into the Department’s rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made. Indeed, that is at the heart of what Inspectors General do.
Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office’s ability to keep “Congress fully and currently informed about problems and deficiencies” of the Department, as required by the Inspector General Act. I am also unaware of other Inspectors General who have been prevented from issuing reports on such a basis. With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion.
Burial by the DHS without the input of neutral parties would do little to rebuild the trust broken by the CBP’s violation of court orders.