Keeping secrets behind bars

From the Spring 2009 issue of The News Media & The Law, page 6.

Ever since the Sept. 11, 2001 terrorist attacks, the federal government has invoked the Privacy Act — and privacy interests generally — to limit access to information about prisoners, immigration detainees and so-called enemy combatants.

An extreme example of such secrecy in the name of privacy arose in the case of John Walker Lindh. Known as the “American Taliban,” Lindh pleaded guilty in 2002 to several terrorism-related crimes and is serving a 20-year sentence in federal prison. In 2007, Lindh petitioned the Office of the Pardon Attorney at the Department of Justice to reduce the sentence — a petition that George W. Bush denied in one of his last acts in office.

The Associated Press filed a Freedom of Information request in 2006 for Lindh’s clemency petition, but the Justice Department refused to release it, citing among other things a FOIA exemption for “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

In deciding how to respond to a FOIA request, the law requires agencies to balance these privacy interests against the public interest in disclosure. So the AP sued, arguing that “FOIA privacy exemptions do not apply to Lindh’s petition because the public interest in understanding the circumstances surrounding his detention, plea, and conviction outweighs the importance of protecting any private information that may be contained in his petition.”

In December, the U.S. Court of Appeals in New York (2nd Cir.) denied the request for access to Lindh’s petition. The court agreed with the AP that FOIA may require disclosure of an otherwise private document “if the requestor can show that revelation of the contents of the requested document would serve the public interest,” finding that “the requested document must produce information revealing ‘what … government is up to.’”

The district court never actually reviewed the petition in order to determine whether its release was in fact in the public interest. Instead, it relied on the claim of a Justice Department official who read the application and concluded that it did not allege government misconduct or reveal what the “government is up to.” But AP disagreed in a Jan. 13, 2009 request for a rehearing of the case, arguing that the Justice Department admitted that “the Petition contains Lindh’s description of his treatment by the government.”

The petition also argued that privacy should not override the interest in knowing about what goes on in the federal courts, criticizing the panel for allowing privacy concerns to hide “a plea for clemency made to the President of the United States by a U.S. citizen … prosecuted in the U.S. courts as an international terrorist.”

The panel’s decision was based in part on the notion that Lindh was willing “to consent to release of the petition, redacted to protect any information that might compromise Lindh’s privacy or safety.” It concluded that “[b]ecause AP is unsatisfied with Lindh’s offer to release the petition redacted only to the extent necessary to protect his personal privacy and safety, it is difficult to escape the conclusion that AP seeks the release of purely private information.”

“The court leaped to the wrong conclusion,” AP associate general counsel Dave Tomlin told an AP reporter when the decision was handed down. “AP was absolutely not seeking information that qualified for a privacy exemption under FOIA. But we weren’t willing to agree that Lindh himself should be the one to decide what he was entitled to withhold, and that was the only deal offered to us.”

Inmates and detainees

The secrecy surrounding Lindh’s request is not an isolated incident. Bureau of Prisons regulations — designed, in part, to implement the Privacy Act — provide that “[l]ists of Bureau inmates shall not be disclosed.” On this basis, the federal government refuses to release rosters of federal inmates, providing basic information on an inmate only when that inmate’s name is queried on the BOP Web site.

Even state and local governments — which routinely release information on their own prisoners — have been prohibited from releasing information about federal inmates on privacy grounds. For example, a federal judge in 2002 rebuffed requests from a Bloomington, Ill., newspaper to learn the names of federal inmates held in a county jail. In that case, reporter Edith Brady-Lunny filed a request under the Illinois FOIA for the names of inmates being held in a local jail. The sheriff released the names of local inmates, but refused to turn over the names of federal inmates. The reporter and her newspaper sued in county court, but the federal government intervened and removed the case to federal court.

Brady-Lunny said she was surprised that the federal government intervened to keep secret the type of prisoner information that is routinely released by states, saying she “did not see a distinction between making public the names of federal inmates and those charged in state courts.” She added that “[t]he open court process requires that justice be handled in public. Why should information on housing inmates be any different?”

U.S. District Judge Richard Mills sided with the government, finding that “any watchdog function that disclosure would serve here is clearly outweighed by inmates’ privacy interests.” Mills reasoned that “[s]ome of the inmates under federal control are merely witnesses and detainees who have not been charged with or convicted of crimes. Releasing their names to the press … would stigmatize these individuals and cause what could be irreparable damage to their reputations.”

A later court deciding a similar claim, however, found that Mills interpreted the privacy exemptions to FOIA too broadly. In ACLU v. Dept. of Defense, the U.S. Court of Appeals in New York (2nd Cir.) criticized the idea that “diffuse harms to unknown and unspecified individuals are covered by the exemption.”

Professor Charles N. Davis of the University of Missouri School of Journalism, and the executive director of the National Freedom of Information Coalition, was similarly critical of what he called “the Alice in Wonderland world of federal FOIA privacy protections.” In cases like Brady-Lunny’s, “the Department of Justice rushes to protect the privacy rights of those with little or no expectation or privacy — prisoners — while all but thumbing their noses at the community’s interest in knowing who is serving in federal lockup,” he said. “Privacy? For a convicted felon? This is not privacy, it’s secrecy.”

Similar privacy-based limitations apply in the immigration context. In 2003, the Immigration and Naturalization Service enacted rules prohibiting the release of information under state open records laws about anyone detained in local jails on behalf of the agency. Though it relied primarily on a national security rationale in enacting the rule, the INS also claimed that the move would protect detainee privacy.

“Detainees may have a substantial privacy interest in their names and the personal information connected with their status as detainees,” the regulation said, adding that “individuals who were originally detained because of their possible connection to terrorism, have an overwhelming interest in not being connected with such activity.” The INS also claimed that “the fact that certain detainees may wish to publicly identify themselves, which they are free to do, in no way undermines this assessment.”

Similarly, when New York Times reporter Nina Bernstein asked immigration officials for details on detainees who died in custody for a story published on April 2, both the government and a hospital refused to provide information on privacy grounds. “[I]n the e-mail message acknowledging” one detainee’s death, she reported, the dead man’s “registration number has been redacted — to protect his privacy, the government said.”

Privacy for Sept. 11 mastermind

The government generally has been no more forthcoming with information about those detained in the War on Terror. In some cases, courts have rejected government attempts to hide detainee treatment issues behind the privacy veil. Indeed, in ACLU v. Dept. of Defense, mentioned above, the Second Circuit rebuffed a government claim that releasing photographs of detainee abuse by American soldiers in Iraq and Afghanistan would “result in unwarranted invasions of the personal privacy of the detainees they depict.”

But the government still relies on privacy interests to withhold records even of those it accuses of being terrorist masterminds. For example, the Pearl Project, a Georgetown University graduate project investigating the 2002 murder of Wall Street Journal reporter Daniel Pearl in Pakistan, has encountered privacy claims when seeking information on Khalid Sheikh Mohammed. This struck many as a strange concern since Mohammed’s capture — and subsequent allegations of torture — were publicized around the world.

The 9/11 Commission Report identified Khalid Sheikh Mohammed as “the principal architect of the 9/11 attacks.” He also allegedly confessed to personally killing Pearl. Mohammed has been held in secret since 2003, during which time he was waterboarded at least 183 times by interrogators.

But when the Pearl Project filed a FOIA request for Mohammed’s confession, the FBI refused to release it without a privacy waiver from Mohammed. Mohammed was held in undisclosed locations and then transferred to the Guantánamo Bay detention camp, raising the question of how a privacy waiver could be obtained even if he were willing to give one.

It was a federal lawsuit that finally convinced the FBI to turn over the records. “When we filed suit in December, [the FBI] backed down on Khalid Sheikh Mohammed,” said Bradley Moss, an attorney representing the Pearl Project. But though the government agreed to release documents pertaining to Mohammed without a waiver, it still insisted on privacy waivers for other detainees. When another requestor filed a FOIA request for information about “a low-level Taliban commander,” Moss said, “within two days the FBI responded and said they needed a privacy waiver.”

Moss saw irony in the government protecting the privacy of an infamous terrorist mastermind like Mohammed even as he was interrogated in secret locations and subjected to waterboarding several times a day. “It wasn’t like they didn’t know who we were talking about,” he said. “Are [they] saying this with a straight face?”