DOJ, DHS Sued Over Inaccurate 'Terrorist Entry' Report

Legal Issues

from the fix-it,-you-stooges dept

At the beginning of the year, the DOJ and DHS teamed up to release a report (very) narrowly crafted to support President Trump’s claims about inherently-dangerous immigrants. Known as the “terrorist entry” report, it skewed data and omitted all mentions of domestic terrorism to paint a distressing picture of foreign individuals wreaking havoc on US soil.

The omission of domestic terrorism was by design. The Executive Order predicating the report [PDF] specifically called only for numbers on “foreign nationals in the US who have been charged with terrorism-related offenses.” That’s because those numbers would look pretty unimpressive stacked up against terrorist acts perpetrated by US citizens, as was pointed out by Lawfare’s vetting of the report.

For one thing, this data set does not include domestic terrorism convictions. That is, it does not capture domestic terrorism subjects, who are more likely to be white and natural-born U.S. citizens. Leaving out those convictions is a big mistake. Last year, when Ellingsen and Daniels wrote about President Trump’s executive order, they found that 1,306 defendants had been convicted of domestic terrorism offenses in the U.S. since 1996. That’s more than twice the number of international terrorism convictions during the same period.

Even if you look past the report’s built-in confirmation bias, the stats compiled by the DOJ/DHS are still questionable. The number of foreign-born terrorism convictions is inflated by defendants who never even temporarily resided in the US.

What’s more, the list included almost 100 foreign-born defendants who were extradited into the United States and therefore never would have been affected by U.S. immigration policy. That is, even excluding domestic terrorism cases, it was possible to support the president’s claim only if one counted as foreign-born terrorism suspects people the United States had actively imported in order to prosecute for terrorism or terrorism-related crimes.

Cleaning up the data — stripping out extradited defendants — results in unimpressive stats that hardly back the administration’s claim that foreign-born individuals are more dangerous than natural-born US citizens.

Ben Wittes of Lawfare is doing more than pointing out the flaws in the report’s methodology. He’s suing the government over its misleading data. Along with the Protect Democracy Project and the Brennan Center For Justice, Wittes is taking the DHS and DOJ to court for violating federal law with the release of this misleading report. (via Courthouse News)

The lawsuit [PDF] points out the administration’s report is, at best, highly misleading.

The Report is rife with inaccuracies and methodological flaws. It fails to disclose most of the data on which it is supposedly based, and fails to objectively analyze what limited data it does identify. Its leading claim is that 73% of individuals convicted of international terrorism-related charges since September 11, 2001 were born in other countries. See Report at 2. Defendants do not reveal the data supposedly underlying that statistic, and a review of the available data demonstrates that the statistic is likely wrong and, at the very least, highly misleading.

Of the 549 convictions underlying the terrorism statistic in the Report, only about two-thirds included charges that the government considers directly related to international terrorism. Even that portion may include convictions where the government originally brought international terrorism charges that were ultimately dropped or that resulted in an acquittal on the international terrorism charge. The Report thus falsely and misleadingly asserts that all of these 549 convictions are for international terrorism-related charges.

This statistic in the Report also excludes instances of domestic terrorism without explanation. Domestic terrorism convictions account for the majority of terrorism convictions resulting in fatalities since September 11, 2001. And the statistic includes, again without explanation, those who were transported to the United States solely for the purposes of prosecution. By omitting domestic terrorism from its analysis, and conflating those who voluntarily came to the United States with those whom the government itself brought here, the Report depicts a false picture of the proportion of terrorism convictions attributable to immigrants.

In addition to this, Wittes, et al allege the report relies on unreliable studies when not misstating conclusions to “pander to negative stereotypes about Islam.” But what can citizens do when the government supports its own actions with bogus numbers and purposefully-skewed data sets? Turns out there’s a law for that.

Fortunately, Congress has provided a remedy for correcting inaccurate or misleading information distributed by executive agencies. The Information Quality Act (“IQA”) requires that information published by agencies of the federal government satisfy standards of objectivity, utility, and integrity. The IQA requires agencies to identify the data and methods underlying their statistical claims. It directs the Office of Management and Budget (“OMB”) to promulgate information quality standards for any information that executive branch agencies disseminate. These standards are legally binding, and require that agency publications be accurate, clear, complete, unbiased, and useful to both the agencies and the public.

And when a report is released that satisfies almost none of these stipulations? Citizens are welcome to use the law to seek redress and official corrections.

The IQA also provides a process for third parties to challenge and obtain corrections to publications that violate these standards. On February 8, 2018, Plaintiffs filed a petition (the “Petition”) with Defendants identifying specific flaws in the Report that violate the quality standards in the IQA and its implementing regulations. Plaintiffs requested that Defendants either rescind the Report or revise it to correct the IQA violations identified in the Petition.

Defendants have not responded to the Petition within the time allotted by applicable regulations, much less rescinded or corrected the Report. The failure to respond violates Defendants’ obligation to adjudicate IQA challenges and continues the ongoing violation of the IQA substantive standards, contrary to the Administrative Procedure Act (“APA”).

Plaintiffs seek to enforce their right to petition agencies for the correction of publications that fail to meet the IQA’s standards, and bring this lawsuit to vindicate their right to receive a response to the Petition as required by applicable regulations.

Neither agency is in any hurry to correct the record. The president has leaned on this report frequently to shore up anti-immigrant rhetoric and justify travel bans. And both agencies can hook up to federal fund fire hoses by presenting immigration as a source of national security threats. It may take a court order to push these agencies to reveal their underlying stats and methodology, if not issue a corrected report fixing its numerous errors.

Filed Under: ben wittes, dhs, doj, executive order, misleading data, terrorist entry