FOIA Lawsuit Filed Over DOJ Data Complainant Is Pretty Sure Doesn't Even Exist

from the press-SEND-to-undermine-presidential-credibility dept

Benjamin Wittes of the Lawfare blog has filed a FOIA lawsuit against the DOJ, hoping to force the government to put its documents where the president's mouth is. [h/t Pwn All The Things]

Back in February, President Trump made the following assertion before a joint Congressional session:

“According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.”

But what data? That's what Wittes is seeking. As he pointed out in April, it appears the president generated this assertion completely out of firing synapses and airborne vibrations.

I'm going to be very blunt here: I not only believe that the White House made up "alternative facts" about the substance of this matter in a Presidential address to a Joint Session of Congress, I don't believe that the National Security Division of the Justice Department provided any data or analysis to the White House that could reasonably be read to support the President's claim. In other words, I believe the President was lying not merely about the underlying facts but about his own Justice Department. Or, in the alternative, I believe it's possible that the Office of the Attorney General may have supported the White House's claim. But I think it extraordinarily unlikely that the folks at NSD actually provided data in support of this presidential statement.

Other authors at Lawfare examined the claim in detail, finding that when people extradited to America to face charges were excluded from the count, the ratio of foreign-born terrorism convicts dropped to 18-21% of the total -- not anywhere near a "vast majority."

Beyond that, there's likely zero data available to support Trump's claim. Wittes notes the DOJ doesn't actually track where convicts are born, and certainly doesn't do so when foreigners are booted from the country by immigration enforcement, only to be dragged back to face criminal charges.

Wittes filed a FOIA request for the numbers the DOJ supposedly "provided" to the president. So far, he's heard nothing back. His requests have been acknowledged but no further processing has been done, not even a determination as to whether he'd qualify for a fee waiver. Now, he's suing [PDF].

Wittes refers to this as the "friendliest lawsuit ever," given that it's not being fired off in hopes of liberating documents the DOJ would rather not part with, but instead to give the DOJ an opportunity to state -- on the record -- that it has none of the information Trump claimed was handed over to him. It would give the DOJ a way to contradict the president's claims without looking like it's intentionally undermining the president's assertions. Considered from this angle, it might be the sort of lawsuit the DOJ might welcome -- although if it was truly interested in disputing the president's statement, it might have chosen to provide Wittes with a more substantive response, rather than wait until it became a problem for the judiciary.


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  • identicon
    Anonymous Coward, 17 Aug 2017 @ 5:14am

    A way of life

    Government agencies, such as the DOJ, have gotten so used to stonewalling FOIA requests that they reflexively do so even when they have no reason for doing so. It has become a way of life for them. And why not? It's not their own money that they're wasting on needless litigation. It's free (i.e. tax) money!

    reply to this | link to this | view in chronology ]

    • icon
      TechDescartes (profile), 17 Aug 2017 @ 8:30am

      Re: A way of life

      Delay itself is a reason. The DOJ may hope that Wittes gives up. Most requesters do. And, even if DOJ ultimately has to give up the information, it will be so long after the original statement that it's no longer news.

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 17 Aug 2017 @ 6:41am

    So would a response of "No documents found" serve to support the requester's claim?

    Just like how the FCC's claim of "no documents" about the supposed DDOS lends credibility to the theory that Idjit Paid was just lying about an attack (like everyhing else).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2017 @ 6:46am

    No, I think it true, It's Harder for the FBI to "help" non-American than an American.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2017 @ 6:59am

    well, applying a documented "Truth" standard to Presidential statements is a new requirement that applies only to Trump.

    100% of U.S. Presidents made statements that were false and/or could not be formally documented as true.

    For example, Presidential State of the Union addresses to Congress are notoriously filled with falsehoods and exaggerations. Presidents are politicians and behave as such, to no one's surprise. Let's dissect every Presidential statement back to JFK ... and demand documented proof of its accuracy from the government.

    This specific FOIA effort is just partisan trump-bashing

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2017 @ 7:31am

    Not true! Everyone in the 57 states of America demand absolute accuracy from our President!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2017 @ 8:06am

    Given the "terrorist" cases built from the ground up by the 3 letters agencies with mentally challenged perps as seen on this website its no wonder that the stats show only 20% were from outside the country.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 17 Aug 2017 @ 8:13am

    "it appears the president generated this assertion completely out of firing synapses and airborne vibrations."

    That's an incredibly funny way of describing a fart going out of an ass implying he took it out of his ass. Gold!

    I'm not sure the DOJ will go down this path, I expect more obfuscation and delaying as long as procedural maneuvers allow.

    In any case, I've come to a point I treat everything Trump says as lies.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2017 @ 8:16am

    I expect DOJ's response will be something along the lines of "There are no unclassified documents responsive to this FOIA request. For national security reasons, we can't show you the classified documents, if any, that may have informed the president's statement, nor confirm or deny whether such classified documents exist." This is a wonderful dodge since it avoids ever saying whether such classified documents exist and, if they do exist, the extent to which they agree with the president's claim. It handily excuses them from a meaningful response to the requester while also not contradicting their superiors.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2017 @ 8:18am

    I miss the days when Wittes was the bad guy

    In the past Wittes has consistently taken the wrong side of national security and privacy issues. And I believe he's still on the wrong side of those issues.
    But with the current administration being what it is, there's this whole "enemy of my enemy is my friend" vibe going on. Wittes has been doing a great job at calling out ridiculousness in the White House. I'm looking forward to when this administration is gone and I can go back to disagreeing with Wittes.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Aug 2017 @ 10:52am

    Other authors at Lawfare examined the claim in detail, finding that when people extradited to America to face charges were excluded from the count, the ratio of foreign-born terrorism convicts dropped to 18-21% of the total

    I'm banned from viewing that page, so, ...

    • does "terrorism convict" refer to people convicted of terrorism, or does it also include the "terrorism-related" offenses?
    • how are "terrorism" and "terrorism-related offenses" defined?

    reply to this | link to this | view in chronology ]


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