Two seemingly unrelated stories — one about ICE locking a Twitter feed identifying criminal aliens, the other reporting that the State Department is barring 76 unidentified Saudis in response to the murder of journalist Jamal Khashoggi — may, on closer analysis, have a common darker theme: a possible attempt by the Biden administration to keep the public in the dark on the implications of its immigration policies by hiding behind the Privacy Act.
With respect to the former story, the Washington Times explained on March 2 that ICE had started a Twitter feed (@ICEAlerts) in 2013 publicizing identifying information of criminal aliens who had been released under local sanctuary policies.
The paper explained: "In both the Obama and Trump administrations, ICE's position was that sanctuary jurisdictions were a danger, shielding people with criminal records from being turned over for deportation."
So ICE publicized those criminals who had been released on ICEAlerts, noting with respect to each: "When jurisdictions fail to honor an ICE detainer, it risks both public and officer safety, and unnecessarily expends ICE's already-limited resources". Those statements are demonstrably true.
ICE expanded that program from Twitter to billboards in Pennsylvania and North Carolina, to keep the public informed that there were dangerous criminals around, for whom they should be on the lookout. If those criminals were spotted, the public was given a phone number and website to notify ICE.
The Biden administration has apparently changed ICE policy on those alerts. Here's what you see if you go on that Twitter account today:
Who, exactly, are those "approved followers", and who exactly is that new policy "protecting"? I have a theory that I will get to in a moment.
Turning to the Saudi case, as the BBC has reported, Khashoggi was a U.S.-based journalist who had been critical of the Saudi Arabian government. In October 2018, he went to the Saudi consulate in Istanbul, Turkey (to obtain a divorce decree), where he was murdered.
In December 2019, five unnamed individuals were convicted and sentenced to death in Saudi Arabia for "committing and directly participating in" Khashoggi's murder; three others received prison sentences for covering up the crime. The death sentences were subsequently commuted (the five got 20 years instead), and the three others convicted had their sentences cut.
On February 26, U.S. Secretary of State Antony Blinken announced a "Khashoggi Ban", restricting visas pursuant to section 212(a)(3)(C) of the Immigration and Nationality Act (INA). That ban would cover not just those linked to the Khashoggi case, but also foreign nationals involved in similar incidents.
To start, the U.S. Department of State has taken action pursuant to the Khashoggi Ban to impose visa restrictions on 76 Saudi individuals believed to have been engaged in threatening dissidents overseas, including but not limited to the Khashoggi killing.
Who are those "76 Saudi individuals"? I have no idea, because the State Department has not released their names. It asserts that its nondisclosure "is rooted in privacy laws governing U.S. visas", but DOS provides no citation for which specific laws it is relying on.
Here's what DOS told Politico:
"Under U.S. law, individual visa records are confidential, and we cannot provide details as to who is or will be included in the Khashoggi Ban. ... We're not in a position to detail the identities of those presently subject to these measures, nor will we be able to preview those who may be in the future."
So — in your name — the United States government is barring foreign nationals from coming here, but won't tell you who they are or why they are banned. And it isn't really telling you why it isn't revealing those facts.
What makes this more confusing is the fact that the names of foreign nationals subject to similar restrictions aren't just revealed — they are publicized. For example, the Treasury Department is more than proud to tell you who it has sanctioned under the Global Magnitsky Human Rights Accountability Act, which targets perpetrators of serious human rights abuse and corruption.
What ties ICEAlerts and the Khashoggi ban together is the refusal by the Biden administration to disclose information about foreign nationals, some of whom in the former case are criminal aliens illegally present in the United States. But there is plainly a reasonable interest among members of the public in knowing that information.
It is your government — you pay for it, and ideally you elect the leaders who run it (again, in your name). What gives?
The answer is likely found in the Privacy Act of 1974, 5 U.S.C. § 552a. I will admit that I am not an expert on that act, but I found myself stonewalled by its (seemingly arbitrary) application in the past, when I was a congressional staffer with oversight of immigration. I usually won.
The act covers the collection, use, and dissemination of documents and other information that is collected by the U.S. government. Most importantly, however, it protects information relating to U.S. citizens and lawful permanent resident aliens (LPRs) from disclosure, except in limited instances. I don't want my tax return made a matter of public record, and likely you don't either.
In other words, the Privacy Act balances public interest in the disclosure of information with reasonable protections for the individuals to whom that information relates. It's a tricky balance.
There are exceptions under the January 2017 Data Protection and Privacy Agreement for information about non-LPR nationals of certain European countries, when such information was "shared to prevent, investigate, detect, or prosecute criminal offenses." Aside from that, however, information related to other foreign nationals should be fair game.
I was in the Reno Justice Department in the late 1990s, though, when a decision was made to extend the Privacy Act to other aliens. It was with the best of intentions, as representatives (formal or otherwise) from the Islamic Republic of Iran were believed to have been requesting information from DOJ about Iranian nationals who were in deportation and removal proceedings.
When formal responses stopped, the Iranians knew that the subject had applied for asylum, because asylum information is protected from disclosure by regulation.
That said, however, it was simply a policy decision, and one that I questioned at the time. Why? Because it was not actually supported by statute, and I believed the public had a right to know about many of those aliens. That extension has continued, however, more or less and to one degree or another, ever since.
Again, though, because application of the Privacy Act in this manner is simply a matter of policy, ICE under Obama and Trump were free to amend that policy to disclose information about aliens illegally present in the United States, and in particular criminal aliens who pose a danger to the community (the general subjects of ICEAlerts).
If I am correct, however, it appears that the Biden administration is extending the Privacy Act — which is essentially a shield for law-abiding U.S. citizens and LPRs — to prevent disclosure of the ramifications of its own (somewhat questionable, in my opinion) immigration policies. That is not acceptable.
If the Biden administration is blocking release of facts that would bring the deleterious consequences of its immigration policies to light for political purposes, it's unacceptable. And they at least have an obligation to tells us if they are, if not to reverse that policy. The tagline of the Washington Post is "Democracy Dies in Darkness" — undeniably true. It would be good if the Post and others live up to that standard, and banish some of the darkness around this issue.