GAO Incidentally Reveals Existence of an Important FOIA Lawsuit

By Dan Cadman on September 14, 2016

Remember the public outrage when it was revealed that San Bernardino attacker Tashfeen Malik had posted radical views, including support of the Islamic State terrorist group, on social media? Officers at multiple agencies of the federal government – including the State Department Bureau of Consular Affairs and two Department of Homeland Security (DHS) agencies, U.S. Citizenship and Immigration Services, and Immigration and Customs Enforcement – didn't discover the postings, presumably because of foolish and unnecessary restrictions prohibiting invasion of aliens' bogus "privacy" rights.

I remember it all too well, having written any number of times about the expansion to absurd lengths of these faux alien privacy rights under the Obama administration; frequently at the expense of public safety and national security (see here, here and here).

Well, here's an interesting factoid: Some attentive individual was attuned to the possibility that such a restrictive social media and internet policy existed a full four years before that awful event in San Bernardino, which resulted in the murder of 14 and serious wounding of 22 by Malik and her husband, Syed Farook. He also was not vetted because "petitioners" who submit applications for alien husbands, wives, children, or fiancées (such as Malik) do not undergo governmental scrutiny to determine their own backgrounds or motives.

We know of this interest in the government's social media policies relating to aliens thanks to a recently published Government Accountability Office (GAO) report that examined federal treatment of Freedom of Information Act (FOIA) requests for 10 years (2006-2015). The report focused particularly on the costs of litigation when the government withholds information, only to lose the case in court when sued and attorneys' fees and other costs are levied.

As a part of its audit, GAO did some selective sampling of 112 cases and such data as exists, showing the costs to the government for refusing to divulge information in response to FOIA requests, only to be forced to do so by the courts after litigation. Interestingly, DHS figures large in the audit of cases in which litigation was forced upon requesters by refusal to respond to FOIA filings with substantive information, or any information at all.

But as I mentioned earlier, the most interesting factoid, at least for those who study matters at the junction of immigration and national security, is to be found buried in the middle of Appendix III.

The first bullet under "Other Reasons for Litigation" on p. 25 contains this gem:

In December 2011, a requester sought documentation concerning the Department of Homeland Security's social media monitoring initiatives. The department did not provide documentation or a determination regarding the request, so the requester filed an administrative appeal. After the initial request, the requester filed a lawsuit after not receiving a response to the administrative appeal or any documentation. The Department of Homeland Security released 286 pages in full, 173 with redactions, and withheld 286 pages. The court ruled jointly for the requester and the department. The court also ordered the department to pay $30,000 in attorneys' fees and costs.

This raises so many interesting questions in light of subsequent events:

  • Who was the requester?
  • Was it an alien or his attorney trying to find out whether his social media postings were being tracked? Was it an alien advocacy group trying to determine the extent of government monitoring? Was it a journalist on behalf of a news organization?
  • If an advocacy group, were they happy to discover results indicating that social media monitoring was in the main prohibited, and therefore buried the information they received, even in the aftermath of San Bernardino? If so, the public deserves to know.
  • If a news organization, why was the information received as the result of litigation never revealed to the public?
  • Exactly what information was provided? Does it comport with what was revealed after the San Bernardino attacks and other, similar incidents? If not, why not?
  • And, finally, are there factual discrepancies between what was revealed as the result of FOIA litigation, and the testimony of DHS officials in congressional hearings subsequent to the attacks?

Perhaps it's time to get to the bottom of this mystery.