DOJ, DHS Sued Over Inaccurate 'Terrorist Entry' Report

from the fix-it,-you-stooges dept

At the beginning of the year, the DOJ and DHS teamed up to release a report (very) narrowly crafted to support President Trump's claims about inherently-dangerous immigrants. Known as the "terrorist entry" report, it skewed data and omitted all mentions of domestic terrorism to paint a distressing picture of foreign individuals wreaking havoc on US soil.

The omission of domestic terrorism was by design. The Executive Order predicating the report [PDF] specifically called only for numbers on "foreign nationals in the US who have been charged with terrorism-related offenses." That's because those numbers would look pretty unimpressive stacked up against terrorist acts perpetrated by US citizens, as was pointed out by Lawfare's vetting of the report.

For one thing, this data set does not include domestic terrorism convictions. That is, it does not capture domestic terrorism subjects, who are more likely to be white and natural-born U.S. citizens. Leaving out those convictions is a big mistake. Last year, when Ellingsen and Daniels wrote about President Trump’s executive order, they found that 1,306 defendants had been convicted of domestic terrorism offenses in the U.S. since 1996. That’s more than twice the number of international terrorism convictions during the same period.

Even if you look past the report's built-in confirmation bias, the stats compiled by the DOJ/DHS are still questionable. The number of foreign-born terrorism convictions is inflated by defendants who never even temporarily resided in the US.

What’s more, the list included almost 100 foreign-born defendants who were extradited into the United States and therefore never would have been affected by U.S. immigration policy. That is, even excluding domestic terrorism cases, it was possible to support the president’s claim only if one counted as foreign-born terrorism suspects people the United States had actively imported in order to prosecute for terrorism or terrorism-related crimes.

Cleaning up the data -- stripping out extradited defendants -- results in unimpressive stats that hardly back the administration's claim that foreign-born individuals are more dangerous than natural-born US citizens.

Ben Wittes of Lawfare is doing more than pointing out the flaws in the report's methodology. He's suing the government over its misleading data. Along with the Protect Democracy Project and the Brennan Center For Justice, Wittes is taking the DHS and DOJ to court for violating federal law with the release of this misleading report. (via Courthouse News)

The lawsuit [PDF] points out the administration's report is, at best, highly misleading.

The Report is rife with inaccuracies and methodological flaws. It fails to disclose most of the data on which it is supposedly based, and fails to objectively analyze what limited data it does identify. Its leading claim is that 73% of individuals convicted of international terrorism-related charges since September 11, 2001 were born in other countries. See Report at 2. Defendants do not reveal the data supposedly underlying that statistic, and a review of the available data demonstrates that the statistic is likely wrong and, at the very least, highly misleading.

Of the 549 convictions underlying the terrorism statistic in the Report, only about two-thirds included charges that the government considers directly related to international terrorism. Even that portion may include convictions where the government originally brought international terrorism charges that were ultimately dropped or that resulted in an acquittal on the international terrorism charge. The Report thus falsely and misleadingly asserts that all of these 549 convictions are for international terrorism-related charges.

This statistic in the Report also excludes instances of domestic terrorism without explanation. Domestic terrorism convictions account for the majority of terrorism convictions resulting in fatalities since September 11, 2001. And the statistic includes, again without explanation, those who were transported to the United States solely for the purposes of prosecution. By omitting domestic terrorism from its analysis, and conflating those who voluntarily came to the United States with those whom the government itself brought here, the Report depicts a false picture of the proportion of terrorism convictions attributable to immigrants.

In addition to this, Wittes, et al allege the report relies on unreliable studies when not misstating conclusions to "pander to negative stereotypes about Islam." But what can citizens do when the government supports its own actions with bogus numbers and purposefully-skewed data sets? Turns out there's a law for that.

Fortunately, Congress has provided a remedy for correcting inaccurate or misleading information distributed by executive agencies. The Information Quality Act (“IQA”) requires that information published by agencies of the federal government satisfy standards of objectivity, utility, and integrity. The IQA requires agencies to identify the data and methods underlying their statistical claims. It directs the Office of Management and Budget (“OMB”) to promulgate information quality standards for any information that executive branch agencies disseminate. These standards are legally binding, and require that agency publications be accurate, clear, complete, unbiased, and useful to both the agencies and the public.

And when a report is released that satisfies almost none of these stipulations? Citizens are welcome to use the law to seek redress and official corrections.

The IQA also provides a process for third parties to challenge and obtain corrections to publications that violate these standards. On February 8, 2018, Plaintiffs filed a petition (the “Petition”) with Defendants identifying specific flaws in the Report that violate the quality standards in the IQA and its implementing regulations. Plaintiffs requested that Defendants either rescind the Report or revise it to correct the IQA violations identified in the Petition.

Defendants have not responded to the Petition within the time allotted by applicable regulations, much less rescinded or corrected the Report. The failure to respond violates Defendants’ obligation to adjudicate IQA challenges and continues the ongoing violation of the IQA substantive standards, contrary to the Administrative Procedure Act (“APA”).

Plaintiffs seek to enforce their right to petition agencies for the correction of publications that fail to meet the IQA’s standards, and bring this lawsuit to vindicate their right to receive a response to the Petition as required by applicable regulations.

Neither agency is in any hurry to correct the record. The president has leaned on this report frequently to shore up anti-immigrant rhetoric and justify travel bans. And both agencies can hook up to federal fund fire hoses by presenting immigration as a source of national security threats. It may take a court order to push these agencies to reveal their underlying stats and methodology, if not issue a corrected report fixing its numerous errors.


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  • identicon
    Annonymouse, 15 May 2018 @ 4:45am

    So does thus law gave any teeth or will it just gum the perpetrators until one or the ither side give up in exhaustion?

    Unless the crimes commited at the capitol by the TLAs have capitol punushment on the books then they will do what they will with impunity.

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

    • icon
      Bergman (profile), 17 May 2018 @ 4:56pm

      Re:

      It doesn't need teeth directly, since refusal to obey a court order is contempt of court, which results in jail time.

      It's entirely possible for someone to spend the rest of their life in jail for contempt of court, since the imprisonment continues until they comply with the court order.

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

      • icon
        nasch (profile), 19 May 2018 @ 9:40am

        Re: Re:

        It doesn't need teeth directly, since refusal to obey a court order is contempt of court, which results in jail time.

        Only if the judge actually charges someone with contempt, which if I'm not mistaken they are pretty slow to do to members of the government.

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

  • identicon
    Anonymous Coward, 15 May 2018 @ 5:38am

    definining terrorism by splitting hairs?

    A big problem is that there is really no agreed-upon definition of a terrorist that covers anything more than the most classic situations, such as membership in an ideologically-driven paramilitary organization that trains, organizes, plans, and and executes covert operations involving large-scale violence and destruction that is not amenable to US interests. Just that last part can be a real point of confusion, since some organizations such as the Mujahideen-e Khalq (MEK) have for many years been simultaneously defined as both a terrorist and a non-terrorist organization, listed on the US State Dept's official Terrorist List while at the same time receiving long-term covert aid from other federal agencies such as the CIA.

    When it comes to individuals who are not known members or sympathizers of any defined radical group or ideology, then defining terrorism becomes even more difficult, as a terrorist act (which is itself highly nebulous) requires knowing what that person is thinking when he commits certain violent acts, in much the same way as defining a hate crime. Interestingly, terrorism and hate crime as defined categories tend to be complementary in practice, especially in acts where the perpetrators and victims are of different races and political orientations: right-wing/white people commit "hate crimes" while left-wing/people-of-color commit "terrorism" -- even when their acts and motivations are essentially identical.

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

    • identicon
      Anonymous Hero, 15 May 2018 @ 5:59am

      Re: definining terrorism by splitting hairs?

      Thanks for your comment. I particularly like the last sentence. +1 for insightful.

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

    • identicon
      Anonymous Coward, 15 May 2018 @ 9:52am

      Re: definining terrorism by splitting hairs?

      especially in acts where the perpetrators and victims are of different races and political orientations

      The idea that humanity consists of genetically dintinct "races" has no basis in science. I suggest this language be avoided.

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

      • identicon
        Anonymous Coward, 15 May 2018 @ 11:03am

        Re: Re: definining terrorism by splitting hairs?

        I would suggest that you relearn science, you fucking clown.

        There is more than enough scientific basis for genetically distinct races. Races are genetically distinct populations of the same species.

        We have billions of dollars of research into all sort of medicine and diseases that are based on "race". We also have genetic tests to determine how much of a specific race you have in your ancestry.

        In fact there is science that suggests that your sexual orientation may be genetically based so of course why would intelligence not also be a genetic trait too... oh shit... I just said something racist.

        Sorry, but science is just science and people like you understand little of it!

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

        • icon
          Jeff Green (profile), 15 May 2018 @ 11:20am

          Re: Re: Re: definining terrorism by splitting hairs?

          There is absolutely no genetic evidence of human races, there may be lots of "scientific" evidence for them, the problem is that none of it is actually scientific, just produced by silly people who like to pander to the ignorant and the hate-filled.

          There are conditions that are more common in particular groups of individuals, this is not evidence of races but of the fact that you can only inherit genes from your parents and thus some genes are more common in some places than in other, but that doesn't make them "genes for race", these same genes exist in other populations from elsewhere in the world, just at different frequencies.

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

          • identicon
            Anonymous Coward, 15 May 2018 @ 2:46pm

            Re: Re: Re: Re: definining terrorism by splitting hairs?

            Yeah, the labels people apply to "races" are pretty ad-hoc which suggests a lack of any real basis. An actual DNA analysis can report percentages of similarity to various groups--not the ones used in everyday conversation (which are themselves often confused with nationality etc), and they won't reduce a person to a single label.

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

            • identicon
              Wendy Cockcroft, 16 May 2018 @ 2:39am

              Re: Re: Re: Re: Re: definining terrorism by splitting hairs?

              Precisely. For example, Ancestry.com will group people on the basis of being Irish or British, etc.

              Wait a cotton picking minute...! Irish and British people are pretty much the same thing (due to multiple invasions, etc.) so how are they telling the difference between us? There is no "Irish race" and there is no "British race." This is nonsense. I daresay, though, that Irish people may have more in common genetically and this is how Ancestry.com, etc., is able to group people from Britain and Ireland respectively. As the AC above states, it's not really possible to reduce a person to a single label.

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

      • identicon
        Anonymous Coward, 15 May 2018 @ 12:03pm

        Re: Re: definining terrorism by splitting hairs?

        Ok - maybe it should say something like "dont be a bigot"

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

  • icon
    TasMot (profile), 15 May 2018 @ 5:57am

    So, is it or is it not fake news?

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

  • icon
    nasch (profile), 15 May 2018 @ 8:47am

    Court order

    It may take a court order to push these agencies to reveal their underlying stats and methodology, if not issue a corrected report fixing its numerous errors.

    Is there anything preventing the administration from just ignoring the order? The government is "required" to respond to FOIA requests in a timely manner, but they just don't do it and there are no consequences. Would this be any different? This seems to be a flaw in our system, or maybe just a result of Congress' complete unwillingness to actually oversee the executive branch.

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

    • icon
      That One Guy (profile), 15 May 2018 @ 12:18pm

      Re: Court order

      Oh I dunno, they might get a stern finger wagging if they ignore it and a judge impotently telling them that if they ignore this next order then they're really in for it.

      Until and unless judges start throwing government people in jail for contempt of court I don't imagine any government agency will care much for what some judge might say or rule. It's not like it's their money they're wasting in the legal actions to stonewall, so why would they care?

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

  • icon
    TheResidentSkeptic (profile), 15 May 2018 @ 9:12am

    There should be awards

    to the agencies for "longest ignored court order", "most redacted response to court order", "least truthful response"...

    I'm sure we can come up with lots of categories to track.. but then again, if someone did publish those statistics, it would be taken down as "fake news" or DMCA'd as publishing copywronged facts...

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

  • identicon
    Anonymous Coward, 16 May 2018 @ 5:50am

    NTN;DR

    Not tech news; didn't read.

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

  • icon
    NaBUru38 (profile), 16 May 2018 @ 1:03pm

    Wsit a minute. What's the difference between national and international terrorism?

    Is it attacks made within or outside U.S. territory?

    Is is attacks made by a domestic or internationsl organization?

    Is "international" a fancy name, like an "international corporation" means that they sell products in Toronto?

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


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