DOJ Tells Me It Can't Find Any Internal Guidelines For When It Seeks Gag Orders For Subpoenas
from the difficult-to-believe dept
Earlier, I wrote about how I sent two FOIA requests over the bogus gag order that Assistant US Attorney Niketh Velamoor obtained to silence Reason.com about the bogus subpoena he sent to identify some rowdy commenters. The two FOIA requests were for: (1) the original application for the gag order and (2) any DOJ guidelines on when to apply for a gag order.
As we noted, I just received a response to the first FOIA request, in that I was told the DOJ could find no responsive documents. That seemed quite bizarre, given that just a few weeks earlier, the DOJ itself had released exactly that document and it appears to match up exactly with what I asked for in my FOIA request.
The DOJ also responded to my second request and — guess what? — it’s the same damn thing. Yup, the DOJ says it has no responsive documents for any guidelines on when to seek a gag order on a subpoena.
If the first is the case, and we have evidence of that based on the other FOIA response, then the DOJ needs to overhaul its FOIA efforts to actually align with the law itself, which requires them to provide responsive documents. The fact that it’s bad at its job (again, on purpose or not) runs counter to the letter and spirit of the law and should be fixed.
If the latter is the case, then that’s also a serious problem. A gag order in a legal proceeding should only be used in very rare circumstances, and given the fact that this particular gag order was granted based on almost nothing, rubber-stamped by a judge who didn’t seem to care about the details, the DOJ really ought to have some fairly detailed guidelines that need to be followed before some kid working in the US Attorneys’ office can try to hide what he’s doing out of embarrassment (as appeared to be the case here). I will be asking the DOJ to explain this lack of guidelines and will continue to report on what it has to say.
Filed Under: doj, foia, gag order, guidelines
Companies: reason
Comments on “DOJ Tells Me It Can't Find Any Internal Guidelines For When It Seeks Gag Orders For Subpoenas”
They use the MIUAYGA process.
Make It Up As You Go Along(tm FBI)
Good one
Good one.
Congratulations Mike
You have personally made it onto the DOJ’s “We have a hunch you might be trouble” No-FOIA list.
There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.
Similarly, I’ve tried to find or get stated guidelines here at Techdirt on the “Censor” — I mean “Report” button of which the fanboys are so fond to hide opinions they don’t like, how many clicks it takes to censor, I mean hide, and/or whether the censoring, I mean hiding, is approved by an administrator and/or an alleged “moderator” which presumably would judge by some criteria. No answer at all. Should I infer that Techdirt is hiding those relevant details besides its policy because too dirty to be made public?
Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.
Techdirt commenters are part of a voluntary community.
If you don’t like TD’s policies, you’re welcome to go elsewhere, or start your own.
Governments don’t work that way. They claim and enforce an monopoly on power. The level of scrutiny required is different.
Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.
Is that really the best you came up with? Disappointing.
Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.
Well, you got a report from me, so there’s one.
Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.
Why, so you can find a way to game it? WTF do you care? If it’s so offensive to you, go somewhere else, somewhere that appreciates your timeless wisdom and deep insight.
Or, be like the rest of us and try to learn from what others offer. Nobody’s forced to agree with anything here, other than be civil, respect the views of others even when you disagree with them, and try not to look like someone’s paying you to astroturf and bludgeon others into agreeing with your viewpoint. That doesn’t actually work, you know?
Re: There may not be any. Gag orders are rare and extra-ordinary as you remark, can't be rigidly defined.
“to hide opinions they don’t like”
It’s very cute how you proclaim this to be the reason for reports rather than the actual reasons of being abusive, offtopic, or spam.
Transparency is anathema.
My first thought was, “Ha, hahahahahaha!”
However, based on other articles I’ve read (including here), they’ve apparently been intentionally doing the opposite of what you suggest. It’s not uncommon for FOIA filers to have to file multiple times, specifying exactly which database the info would be found in, none of which are named or advertised outside the agency in question.
The DoD hates the 1st Amendment & Freedom of the Press, most agencies despise FOIA, and the president himself has nothing but contempt for whistleblowing.
I see a pattern at work.
Re: Transparency is anathema.
I just had an idea. Charge the gov’t with obstruction of justice. Even if it doesn’t work, it might create PR benefits when it’s on the six o’clock news.
The DOJ asking for a gag order is self interest and therefore somewhat understandable. If the courts won’t even decline these unsubstantiated requests because judges view themselves as part of “law enforcement” rather than impartial arbiters then no changes to laws, FOIA or otherwise are going to make any difference.
Dear Masnick:
Whenever we gd feel like it.
Yours,
DOJ
Read between the lines
…a search has been conducted of the electronic database of the Departmental Executive Secretariat, which maintains certain records of the Offices of the
Attorney General and the Deputy Attorney General records. and no records responsive to your
request were located…
That means the requested information is not in the electronic database, or is not within the named departments, or is not being maintained.
(I’m sure others can come up with better excuses than I can.)
Why does that surprise you? What guidelines do you need when your primarily motivations for obtaining one are petty spite and caprice?
Guidelines would only interfere with the freewheeling DOJ culture we’ve come to know and love post 9/11.
Re: Re:
Post 9/11? Awfully optomistic there…
Re: Re:
this shit has been happening since before, while 9/11 only ratcheted some of it into overdrive.
Re: Re: Re:
Yeah. We all know that. But I cited post-9/11 as an arbitrary starting date because that’s when it began to take place on a widespread basis with absolutely no fear of any possible repercussions or risk of being held accountable.
Ain’t “National Security” a grand thing?
Guidelines? Guidelines?!
We don’t need no steenking guidelines.
Nothing new here
Long ago (early ’80s) I met a rather aged lady, mother of a friend. Long before that, she had worked in a DoD film archive, somewhere out in the desert in California. Every morning the staff would catch the bus out to the site, and were supposed to respond to requests for film records, searching through the vault for films that had been requested by whoever was looking for them.
Some of the staff members would spend all day rummaging through the vaults looking for exciting films (those of Col. Stapp taking rocket sled rides were particularly prized). Fifteen minutes before the bus was to leave they would go to their desks, take everything in the “IN” box, write “No record” on the request, and drop the forms in the “OUT” box.
So she told me then, anytime you write a government office and ask for something, if it comes back “no record” always ask again, and hope that this time it lands on the desk of someone who is actually doing his job.
My guess is that the odds of finding a conscientious government worker at the US Attorney’s office of Southern District of New York in 2015 are substantially lower than the odds of finding one at a DoD film archive in southern California in 1955. So the fact that you got a “no record” for something that obviously exists is not particularly surprising.