Faux Privacy Rights for Illegal Aliens Take a Judicial Hit; Public Right to Know Prevails

By Dan Cadman, October 17, 2014

All too often lately we have seen specious decisions coming out of the federal district and circuit courts where immigration-related decisions are concerned. (For just two examples, see here and here.)

I'm happy to report for once, though, that an important decision was reached by the federal First Circuit Court of Appeals in Boston — one that, unusually and ironically, should please both those who are pro-enforcement and those who are pro-open borders. I say should please because, as you will see a little further along, apparently not everyone is enthused.

The origins of the case stem from a Freedom of Information Act (FOIA) request filed by a New Hampshire newspaper, the Union Leader, asking ICE to provide the names of alien criminals arrested during an enforcement operation, along with the details surrounding their offenses. ICE, typically, refused, citing those aliens' "privacy rights" even though, as I have observed before, such rights don't exist under the federal Privacy Act (PA) — something even the most wet-behind-the-ears government attorney must know. The Union Leader filed suit and lost at the federal court level (a classic example of judicial misinterpretation of both the FOIA and PA statutes). They then appealed to the federal First Circuit Court of Appeals.

The First Circuit has now ruled, and directed ICE to reveal the names and crimes of the aliens who were arrested so long ago as to be nearly irrelevant now, except for the principle they embody: transparency and openness in government.

Curiously, both the district and circuit courts, although arriving at diametrically opposite decisions, focused on the provisions of FOIA, rather than those in the PA — which limits federal privacy protections to "U.S. persons", who are defined as United States citizens and resident aliens. Nonimmigrants and illegal aliens are outside the scope of federal privacy law.

But whatever the logic, the outcome is appropriate and should be welcomed, not just by media outlets, but also by the public at large and groups at both ends of the immigration advocacy spectrum, because it helps to pierce the fog that this administration has dropped over government immigration operations. And that leads us to the anomalous position taken by the American Civil Liberties Union (ACLU) when contacted for their views on the circuit court's decision. According to the Union Leader, an ACLU spokesman said, "Unfortunately, we're not going to be able to comment. For us, it's a complicated issue of balancing privacy and government transparency that would require us to really delve into the specifics before we took a position."

Doesn't look that complicated to me. Could it be that such a decision sets back the ACLU's agenda where illegal aliens are concerned? Perhaps it doesn't always suit their interests for the public to know, in detail, the kinds of aliens who are committing crimes on the streets of America — aliens whom the ACLU hopes will become additional beneficiaries of expanded "executive action" by our overreaching president and secretary of Homeland Security.

Time to change the ACLU's name, maybe. How about the Post-American Civil Liberties Union? After all, notions of patriotism and identification with the body politic are so passé.