Judge Orders Feds to Cough Up More|Info on ‘Secure Communities’ Program

MANHATTAN (CN) - A federal judge ordered the federal government to hand over "embarrassing" information about its "Secure Communities" program. "There is ample evidence that ICE and DHS have gone out of their way to mislead the public about Secure Communities," U.S. District Judge Shira Scheindlin wrote.

"In particular, these agencies have failed to acknowledge a shift in policy when it is patently obvious - from public documents and statements - that there has been one," the judge added in a scorching 81-page Opinion and Order in National Day Labor Organizing Network et al. v United States Immigration and Customs Enforcement Agency et al.

Also on Monday, the DHS Office of Inspector General said it will investigate ICE's misrepresentations of the Secure Communities opt-out policy and whether the program fulfills its purported mandate.

The National Day Laborer Organizing Network and others in April 2010 sued five federal agencies - including the FBI, the Executive Office for Immigration Review and the Office of Legal Counsel - seeking information about the Secure Communities program under the Freedom of Information Act.

The plaintiffs - which include the Center for Constitutional Rights and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law - said the system is "error-prone" and was been planned to be instituted nationwide "without sufficient transparency, oversight, or public engagement." They also claimed that despite being portrayed as aimed at criminals, people were entered into the system after being fingerprinted for minor traffic offenses.

When the first complaint was filed, Secure Communities was in its "pilot phase," in 145 jurisdictions; plans had been laid to expand it into every jail in the country by 2013, the plaintiffs said.

On Feb. 3 this year, Judge Scheindlin ordered the government to make the nearly 3,000 pages of documents it had released more accessible for public scrutiny.

After the first data dump, National Day Laborer officials said they discovered the involvement of the FBI "Next Generation Identification" (NGI), a "biometric" initiative they described as straight out of George Orwell's "1984."

"NGI is the next-generation Big Brother," National Day Laborer spokeswoman Jessica Karp said "It's a back-door route to a national ID, to be carried not in a wallet, but within the body itself. The FBI's biometric-based project is vulnerable to hackers and national security breaches and carries serious risks of identity theft. If your biometric identity is stolen or corrupted in NGI, it will be hard to fix. Unlike an identity card or pin code, biometrics are forever."

More recently, the nonprofit plaintiffs claimed the defendant federal agencies are trying to hide inconsistent public statements about the program. They said the government assured the public that jurisdictions could opt out of the program-until the Secretary of the Department of Homeland Security announced otherwise at an Oct. 6, 2010 press conference.

"[DHS] does not view [Secure Communities] as an opt-in, opt-out program," DHS Secretary Janet Napolitano said, according to court documents.

The plaintiffs asked Scheindlin to remove redactions from the documents that they believe covered up the inconsistencies.

On Monday, Scheindlin granted several of those requests, in a lengthy order that largely confirmed the nonprofits' suspicions about what's beneath the censored portions of the government documents.

In one instance, the judge forced the government to reveal two paragraphs of a memorandum describing how Secure Communities operates. Scheindlin said the paragraphs contain "embarrassing" details that "highlight the inconsistencies in the agency's public stance," but the public interest outweighs the agencies' potential embarrassment.

"The purpose of FOIA is to shed light on the operation of government, not to shield it from embarrassment," Scheindlin wrote.

Although Scheindlin said the government has not shown "systemic bad faith" in complying with her prior orders, she added, "I am troubled, however, by defendants' somewhat haphazard redactions and assertions of exemptions."

A lawyer for the Center for Constitutional Rights praised the ruling.

"The court refused to allow the government to withhold documents that merely discuss how to spin an agency policy for the public, especially when the agency's messaging is purposefully misleading," attorney Sunita Patel said in a statement. "The release of the information improperly withheld from the public will only help public officials and community members in the on-going Secure Communities debate."

In the same statement, the director of the National Day Laborer Organizing Network criticized the Obama administration for supporting the Secure Communities program.

"While the Obama administration boasts of the 'Secure Communities' program to win political points with Republicans, it has kept actual policy details nearly secret from Congress, state partners, and the American public. Thankfully, federal courts, not ICE, get the last word," said National Day Laborer director Pablo Alvarado. "The administration has a responsibility to be transparent and provide information to the public regarding this dangerous program. As we've seen in states and localities across the country, the more the public learns about 'Secure Communities,' the more they say 'no thank you' to its implementation."

The U.S. Attorney's Office declined to comment on the ruling.

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