'The Toughest Transparency Rules in the History of Government'? Saga of a FOIA Request

By Janice Kephart on October 26, 2011
I won't stop fighting to open up government … I can tell you we've put together the toughest ethical rules and the toughest transparency rules in the history of government."
-- President Obama, January 22, 2010

In July 2010, President Obama stated he was working to open up government and add transparency so Americans could see just what was going on in federal government, including a record of every single person coming in and out of the White House.

I had already tested that notion of transparency in 2009 to no avail. On July 1, 2011, I tried again. I submitted a relatively simple four-part Freedom of Information Act (FOIA) request to Customs and Border Protection (CBP), the agency within the Department of Homeland Security responsible for inspections at ports of entry and for securing the border between those ports of entry within 100 miles of U.S. boundaries. I requested apprehension data on areas covered by the much-maligned Secure Border Initiative (SBInet)in Arizona and current data on apprehensions in all four southwest border states of illegal crossers from countries that sponsor or support terror. On July 20, 2011, I received a response from Dorothy Pullo, CBP's FOIA Director in their Office of International Trade. I was told "every effort will be made to comply with your request in a timely manner." Costs would be charged (at 10 cents per page in duplication costs), but the first 100 pages would be free. In addition, I was told I would have to pay "for search and review time in the processing of this request, though the first two hours of search time are free." No further figures were required.

On September 1, 2011, Ms. Pullo wrote me again. This time, there was no mention of the first 100 pages free. Moreover, there was no initial two hours of free search time. I was to be charged at a rate of $32/hour and an estimated cost of $192 needed to be paid upfront or no search would be conducted at all. I had 30 days to respond (I had waited 60 days for this response), or "the request will be administratively closed."

With regard to the content of my request, Ms. Pullo's second letter denied me everything but what I could likely get from publicly available documentation online. This was the same response I received to a much more in-depth FOIA request two years ago, which after many delays yielded nothing at all in the end. When I made the current request on July 1, I had been reporting on leaked or barely publicized apprehensions in the sectors where SBInet technology existed, that provides a "common operating picture" for Border Patrol to efficiently, expeditiously, and safely apprehend and save illegal aliens in Arizona's central and western borderlands areas of Buenos Aires National Wildlife Refuge and Organ Pipe Cactus National Monument. I was seeking information on this in the first two bullets of my request in order to better evaluate and quantify the value of the technology in its operational support to secure the border. I was told my requests on SBInet sectors could not be provided.

Rather, it was explained, statistics are not kept on SBInet "illegal pursuits, apprehension or rescue reports and or statistics by month or by incident (whatever reporting is available) for Secure Border Initiative area" since February 2010 when the area became fully operational, termed Tus-1 (Buenos Aires National Wildlife Refuge) and Ajo-1 (Organ Pipe Cactus National Monument). I was told this despite the fact that I know that specific statistics were kept and made part of the SBInet assessment in an internal report never made public. Also, the Ajo sector had announced publicly several large apprehensions of illegal immigrants. I had also spoken to a Border Patrol spokesman in one of the sectors, who had looked up a few incidents to help me derive some analytics in the prior few months. Perhaps Ms. Pullo's response was technically accurate, but it seemed incongruous with my knowledge going into the FOIA request.

The next bullet item in my letter was a request on illegal apprehension, removal, and prosecutorial statistics. I was told only apprehension statistics are available. I was not told why data on information that traditionally has been public – removal and prosecutorial data – could not be provided. While I am well aware that the ICE prosecutorial discretion memos and subsequent reporting made clear that many pending prosecutions were being dismissed outright, it did not make sense that an administration claiming the highest numbers of removals/deportations ever would not want to provide such data. Again, I was given no further explanation.

I also wanted an update on a statistic that the Bush administration had made public: Special Interest Alien apprehensions statistics, i.e., those foreign-born persons from the 35 countries the State Department lists as either sponsoring or supporting terrorism. This bullet in my letter read like this:

‘Special Interest Alien' (as defined by the Department of Homeland Security) apprehension, removal and prosecution statistics for the southwest border from 2001 to present, broken down by southwest border state (California, Arizona, New Mexico and Texas) and/or southwest Border Patrol sector.

I was careful drafting these requests. In this particular one, I wanted to make sure I got the terminology right, and gave myself wiggle room for DHS to define what "special interest alien" meant, in case it had been redefined, as Secretary Napolitano had redefined "terrorism" at the beginning of her tenure. I also asked for a statistical breakdown by either of the two ways in which Southwest border statistics were usually broken down, by state or by sector. I felt compelled to make the request again because I had been denied this information two years ago in a prior FOIA request, having been told it was "too sensitive" for release. Special interest alien data had always been released in prior years, and while it had made no sense to deny the information, I had decided not to object to the prior denial. This time, I was given an astonishing response: "In regards to part four of your request, CBP does not use the term Special Interest Alien." How strange, given CBP's frequent use of that very term:

  • In late March 2011, the Houston Chronicle reported: "Nearly 900 'special interest aliens' from 35 nations with suspected ties to terrorism have been apprehended along the border between Texas and California over the past 17 months, the Lone Star State being the land route of choice, according to a Border Patrol report obtained by the Chronicle. The arrests include the high-profile case of former Montreal imam Said Jaziri, a native of the watch-list country of Tunisia, who was arrested for unlawful entry by the U.S. Border Patrol near San Diego in January.

  • In March 2011, a watchdog group issued a press release entitled "Judicial Watch Obtains New Border Patrol Apprehension Statistics for Illegal Alien Smugglers and 'Special Interest Aliens'", which stated "Overall, U.S. Border Patrol agents apprehended 663 'Aliens from Special Interest Countries.' These countries are deemed 'special interest' because of their suspected ties to terrorism."

  • The Border Patrol teaching guidelines online devote an entire 42-page chapter to special interest aliens, defining the term and using that chapter to teach a variety of fraud often used by terrorists attempting to illegally enter the United States:

    Legal Update: Special Interest Aliens

    This course provides information and investigative techniques to enable law enforcement officers to determine if an alien from a special interest country poses a potential terrorist threat to the United States.
    Upon successful completion of this course, the student should be able to:
    1. Identify special interest countries identified as terrorist havens and exhibit a basic working knowledge of terrorist organizations, their ideologies, and their tactics.
    2. Identify fraudulent immigration and travel documents.
    3. Utilize interview techniques to determine the legal status of an alien.
    4. Identify federal law enforcement resources that provide law enforcement officers with timely status and identity information on aliens suspected, arrested, or convicted of criminal activity.

  • According to a memorandum from U.S. Border Patrol Chief David V. Aguilar, "Arrests of Aliens from Special Interest Countries," written for Sector Chief Patrol Agents and released in November 2004, the following 35 countries and the territories of the West Bank and the Gaza Strip have been designated as Special Interest Countries, where aliens with strongly anti-American ideologies and radical religious and terrorist leanings might come from: Afghanistan, Kuwait, Somalia, Algeria, Lebanon, Sudan, Bahrain, Libya, Syria, Bangladesh, Malaysia, Tajikistan, Djibouti, Mauritania, Thailand, Egypt, Morocco, Tunisia, Eritrea, North Korea, Turkey, Indonesia, Oman, Turkmenistan, Iran, Pakistan, United Arab Emirates, Iraq, Philippines, Uzbekistan, Jordan, Qatar, Yemen, Kazakhstan, Saudi Arabia, Territories of Gaza, and West Bank.

There seemed ample evidence that Special Interest Alien and Secure Border Initiative data exists. However, I suppose it depends on who asks whether it exists or not, or how transparent the Obama administration will be.