Appeals Court Says Government Doesn't Have To Disclose Contents Of Its Secret Terrorist Organization List

Legal Issues

from the terrorist-farm-teams-or-something dept

An attempt to force the government to reveal its secret list of terrorist groups has been shot down by the Seventh Circuit Court of Appeals [PDF]. The Heartland Alliance Immigrant Justice Center’s FOIA request for “Tier III” terrorist groups can remain unfulfilled. [h/t Brad Heath]

Without giving too much away (and neither the court nor the government does), “Tier III” is apparently more nebulous and fluid than tiers I and II.

Tier I and Tier II organizations are publicly identified terrorist groups such as ISIS and al?Qaeda. Tier III organizations are defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as any group of two or more people that engages in terrorist activity (as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)), even if their terrorist activity is conducted exclusively against regimes that are enemies of the United States. Tier III organizations tend to have a lower profile than Tier I’s or Tier II’s, not only because the government does not publish their names but also because they tend to be groups about which the U.S. government does not have good intelligence, making it essential that the Department be able to obtain information about them during screening interviews that are as focused and complete as possible.

The government withheld this info under FOIA 7(E), which covers “techniques and procedures for law enforcement investigations or prosecutions.” As the government argued, divulging these “groups” of two or more possible terrorists would likely allow screened immigrants to hide their involvement in these groups.

[A]s explained in the government’s brief, “an alien who becomes aware that a particular organi?zation has been found to fall within the definition of a Tier III organization will have a very strong incentive to falsify or misrepresent any and all encounters, activities, or associations that he or she may have had with that organization.” If the alien doesn’t know that a terrorist organization that he has belonged to, been affiliated with, or maybe simply has provided supplies or money to, has been identified by our government as a terrorist organization, he is likely to be less guarded in answering questions about his activities in or associations with the organization. But if he knows that the organization he belonged to or was associated with is deemed a terrorist organization, he is likely to deny having ever had any connection to it or even having ever heard of it.

The Justice Center pointed out that the government’s fear of slippery foreigners might be overstated. After all, members of terrorist groups — whether publicly acknowledged by the government or not — would be just as likely to lie about their affiliation even if privy to the contents of the Tier III list.

The Appeals Court doesn’t think much of the Justice Center’s counterargument, positing that any interrogation predicated on the Center’s assumptions would be a “dumb interrogation.” In the eyes of the court, the government’s secrets allow it to more gracefully handle questionings, allowing it to tease out affiliations detainees would otherwise be unwilling to disclose.

The court isn’t much kinder to the Justice Center’s speculations about the contents of the Tier III list.

We learn in the Center’s reply brief that its primary concern is not with names but with the Tier III category itself, for it says for example that “the designation of Tier III organizations is often doubtful.” It hopes that if it can obtain the names of all the organizations—its goal in this litigation—it will be able to discredit some or perhaps many of them. Deeply distrustful of the U.S. government, by the tone and content of its briefs the Center signals its disbelief that the government has secrets worth keeping from asylum seekers and their helpers (such as the Center), but it does not explain what the government would gain by pretending that harmless organizations are actually terrorist groups.

The court does give the government a bit more credit than it deserves. It’s not so much that the government would try to gain something by designating harmless groups as terrorist organizations. It’s that government agencies have shown a willingness in the past to designate political groups they don’t like as enemies or criminals, subjecting them to unlawful surveillance and other rights violations.

The concurring opinion raises another concern — one that the court finds bolsters the government’s secrecy assertions, but one that could also be read as a call for more scrutiny of this particular list.

At oral argument, the government noted plausible foreign relations grounds for the government withholding this information under other FOIA exemptions. Specifically, it noted that U.S. government relations with Tier III organizations might change on short notice, and that revealing certain Tier III organizations might have foreign policy ramifications. What one day might be an allied Christian militia fighting against the Islamic State (ISIS) might the next day be our nation’s enemy, and while not rising to the level of a Tier I or II organization, might fall under Tier III. All of this suggests that the government has, in our nation’s FOIA law, adequate alternative claims for exemption that it chose to avoid, so there is no need to broadly construe 7(E).

The unasked question is this: if alliances shift, does the government immediately release detainees affiliated with groups the government has arbitrarily decided are now the nation’s allies? Or do they just sit around forgotten in detention centers while the government moves organization names on and off the list? Who knows. The opinion suggests this is a problem for Congress to solve — either by scaling back the scope of the FOIA exemption or by actually using its oversight powers to periodically review the Tier III list.

Filed Under: doj, foia, terrorists, tier iii, watch list