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More Troubling Ashcroft-isms

by Jose Latour

Let's face it, folks: there is no loyal, faithful, regularly published and widely-read Republican on the planet doing more Bush-bashing than me, but someone has to do this.

I just read a big New York Times article, and I pulled together a lot of information which has been in my head but not necessarily organized, and I needed to lob another one at old Attorney General John Ashcroft because the pattern is really getting disturbing.

As we all know, the September 11 terrorist attacks prompted an increase in secrecy within the Bush Administration, and all of us were, to one extent or another, somewhat understanding of the need. The closing of a number of court proceedings was dramatically opposed by the ACLU and a number of other organizations associated with judicial process, but for most Americans, it fundamentally made sense. Other things having nothing to do with national security - like Vice President Dick Cheney's success in keeping the records of his conduct during his participation in the Energy Task Force from being released to the public - left a rather uncomfortable feeling in those of us used to public openness when it comes to these types of investigations. We wondered exactly what was going on.

Late in 2001, something happened which affected a great deal of my attorney brethren who practice in the immigration courts: folks like Maddy, who must routinely rely upon the government's own files for the procurement of information and records needed to defend their clients' cases. Late that year, Ashcroft announced a new policy regarding the Freedom of Information Act. I remember reading a blurb about the policy, but neither AILA nor the press really picked up on the significance. In fact, it was not until this January 3, 2003, New York Times article that the whole thing came together.

Let me explain the Freedom of Information Act (FOIA) and what exactly it does. Within the context of immigration law, a FOIA request is the way that an immigration attorney (or an individual representing him or herself) can compel the government (whether it is INS or another agency) to open their files and release copies of what is contained in those files. There are time constraints and rules regarding how a FOIA request is supposed to be responded to, but those are routinely disregarded by the INS. For example, if a person has a problem at the port of entry, and an irritated airport officer makes some kind of cryptic comment in the computer, good luck to the immigration attorney who tries to find out what is really in there; in most cases, the request will be responded to months later, and the INS will routinely exclude any derogatory comments which they simply don't feel like producing to the attorney. They will give you a little piece of paper on top that says that 'X' number of pages were deleted for "government reasons" or something to that effect... if they simply don't feel like giving them to you, they don't, and there's nothing you can do about it.

As you can see, the system wasn't that great to begin with, but get what Ashcroft did in late 2001: the Ashcroft directive basically told federal agencies to outright reject requests for documents if there was any legal basis to do so, ensuring that the Justice Department would defend them in court if challenged. You heard me right: "if you can think of a way to reject a request for a FOIA, do so, because we don't want you to give up any documents that you do not have to give up, even to parties who are entitled to receive them."

That doesn't sound very American, does it?

Contrast that to what the Clinton Administration told agencies to do, which was to make the records available whenever they could, even if the law provided a reason not to, so long as there was no "foreseeable harm" from the release. As an American, I am very embarrassed between the contradiction in language between what the last Democratic president did compared to what this administration has done... it's embarrassing, and there's no other word.

In The New York Times article, Columbia University Historian Alan Brinkley states that secrecy has been "taken to a new level" by the Bush Administration and that the directive creates in agencies the "instinct... to release nothing." I would add to the good professor's quote that this was already the instinct at INS, and that this is an even more stark directive.

I, too, fear the same things that Mr. Ashcroft and Mr. Bush fear, but I am very troubled by the methodologies being implemented to make America more secure. The constant trend of this administration is to increase security through the curtailing of fundamental American rights, rights defined by the U.S. Constitution and by our forefathers, who knew a hell of a lot more about our freedoms and the importance of constitutional liberties than the Ivy League "experts" running around within the hallowed halls of the White House, making unilateral decisions for the rest of us.

About The Author

Jose Latour is the founding partner of Latour & Lleras, P.A., a Gainesville, Florida based business immigration practice representing corporations nationwide in visa management, compliance, and HR training. The above represents Mr. Latour's Editorial opinion. The A/V rated firm and its web site,, were named a winner of the 2002 Inc. Magazine Web Award, receiving recognition along with 14 other companies as the best Web companies in America. In 1999, the firm was named "One of America’s Top Ten Internet/Virtual Companies" in the Inc. Magazine and Cisco Systems "Growing with Technology Awards." The site is one of the most visited and widely read resource on the Internet on U.S. immigration law, attracting subscribers from all over the world, the media and from within the U.S. government. Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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