Appeals Court Requires Justice Department to Turn Over Secret Memo on Immigration Policy

June 2, 2005 12:00 am

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Ruling is Blow to Government Secrecy, Says ACLU

NEW YORK — Calling it another blow to government secrecy over post-9/11 policies and practices, the American Civil Liberties Union today hailed a unanimous federal appeals court ruling that requires the Justice Department to disclose a secret legal memorandum that outlines the government’s legal position advocating for unprecedented power by local police to enforce civil immigration laws.

“The court has issued a powerful rebuke to the Bush Administration’s attempt to shield its radical legal views from public scrutiny and debate,” said ACLU Immigrants’ Rights Project attorney Omar Jadwat, who argued the case. “The Justice Department’s attempt to evade the Freedom of Information Act has been resoundingly rejected.”

The ACLU, the New York Civil Liberties Union and a coalition of eight civil rights and immigrants’ rights groups brought the lawsuit in April 2003 against the Justice Department after filing a Freedom of Information Act request seeking disclosure of an unpublished Office of Legal Council memorandum. The secret memorandum, which was prepared for the Justice Department in April 2002, was used by then-Attorney General John Ashcroft to justify a major change in federal policy to try to cause state and local police to enforce civil, non-criminal federal immigration laws.

This policy was roundly criticized by the ACLU and many other groups, including chiefs of police and law enforcement officials. Yet, despite repeated requests, the government refused to disclose the supposed legal justification for its new policy and sought to shield the legal memorandum from public scrutiny.

In its ruling released late Tuesday, the Second Circuit Court of Appeals stated that, “we cannot allow the Department to make public use of the Memorandum when it serves the Department’s ends but claim [a] privilege when it does not.”

In the past, dozens of local police officials and law enforcement organizations have spoken out against state and local participation in immigration enforcement, saying that it would jeopardize their relationships with immigrant communities and divert local law enforcement resources from the more important job of trying to control crimes against people. As former Montgomery County (MD) Police Chief Charles Moose told a Washington radio station in May 2002: “This movement by the federal government to say that they want local officers to become INS agents is against the core values of community policing: partnerships, assisting people, and being there to solve problems.”

Other groups represented by the ACLU Immigrants’ Rights Project and the NYCLU in this case are the National Council of La Raza, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, National Employment Law Project and Massachusetts Immigrant and Refugee Advocacy Coalition.

The case is National Council of La Raza et al. v. Department of Justice. Attorneys for the groups are Lucas Guttentag, Lee Gelernt and Jadwat of the ACLU Immigrants’ Rights Project, Michael J. Wishnie, an ACLU cooperating attorney in New York, Christopher Dunn of the NYCLU and Linton Joaquin of the National Immigration Law Center.

The Second Circuit Court of Appeals’ decision is online at: /node/35441.

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