In January 2010, McClatchy Newspapers petitioned the Department of Justice’s Office of Legal Counsel (OLC) for a copy of an internal memo that evidently detailed the DOJ’s legal defense for obtaining the telephone records of American citizens and residents. McClatchy learned of the memo from a heavily redacted inspector general report on abuses of power that the FBI committed while seeking telephone records.

Now, a year on, the FBI and DOJ have declined to release the memo, even though it is a document that should be available to the public under the Freedom of Information Act. However, McClatchy reports the OLC’s cover letter to McClatchy newspapers does cite a section in a 1978 wiretapping law that the office contends gives the government legal authority to collect telephone records from telecommunications firms.

While McClatchy does not get more specific, that can only be the Foreign Intelligence Surveillance Act of 1978, which outlines procedures for gathering intelligence on communications between foreign governments and their contacts within the U.S. In 2001, the PATRIOT Act expanded the law to apply to those with connections not just to other governments, but to any foreign group seen as hostile toward the U.S., and a further revision to the law in 2008 (PDF) expanded the government’s legal authority to performance surveillance without a warrant. Although the original law actually prohibits telecom companies from handing over phone records, the 2008 revisions also give those very companies immunity from lawsuits should they do so — meaning that if the FBI leans on, say, AT&T to disclose customer records, there is no incentive for it not to do so.

Kevin Bankston, a staff attorney and expert on electronic surveillance and national security laws for the Electronic Frontier Foundation, tells McClatchy the OLC’s defense could easily be expanded to include emails as well, as long as they are sent to international addresses. Meanwhile, the Department of Justice still refuses to release the original memo that McClatchy requested over a year ago.

Under federal law, any person can request information on the operation of the federal government. The law is called the Freedom of Information Act, or FOIA. The feds say the various departments process 600,000 FOIA requests a year, but Issa wants to make sure that the responses to those requests are done in a timely manner. Under his request, departments will have to turn over any communications with requesters whose requests have taken more than 45 days to process.

Here’s how a spokesperson for Issa classified the request:

“Our interest is not in the private citizens who make the requests,” said Kurt Bardella, a spokesman for Mr. Issa. “We are looking at government responses to these Freedom of Information requests and the only way to measure that is to tally all that information.”

But others worry about the broad request and the potential political impacts:

It “just seems sort of creepy that one person in the government could track who is looking into what and what kinds of questions they are asking,” said David Cuillier, a University of Arizona journalism professor and chairman of the Freedom of Information Committee at the Society of Professional Journalists. “It is an easy way to target people who he might think are up to no good.”

Issa’s spokesperson and Committee staff say there should be no concerns about the identities of persons being used improperly. They promise not to allow that to happen. But don’t plan on getting anything but a promise from the Committee on that issue. Congress is not covered by FOIA, so you will have to trust Issa et al, that they will be transparent on the use of the names.

But opponents of Secure Communities said they are not done pushing back against the program, which they say lessens overall safety by making immigrants fearful of police.

“We’re not giving up,” Lucero Beebe-Giudice, a spokeswoman for Tenants and Workers United, told TWI. “We continue to believe there’s a way to opt out. They’re trying to take the wind out of our sails, but we think that there’s a way to opt out.”

Tenants and Workers United is part of a larger coalition of immigrant rights groups that are fighting the spread of Secure Communities, which the Obama administration plans to extend nationwide by 2013. ICE officials listed steps for communities to be removed from the program, but later said opting out is impossible because fingerprints are shared directly between the FBI, which receives them for criminal background checks, and the Department of Homeland Security.

Immigrant rights groups are trying to get more information about the program, the technology that would be needed to filter out results sent to DHS and any policy changes that made the program mandatory. The groups submitted a Freedom of Information Act request in February, then filed again in October to receive documents related to the opt-out process.

Beebe-Giudice said Arlington would continue sending fingerprints to the FBI for criminal background checks even though they will be forwarded to ICE, but could change its actions on Secure Communities based on information that comes out of the FOIA request.

“The county is not going to stop doing whatever their regular process is,” she said. “But that doesn’t mean they’re not going to continue to pursue this issue.”

Translation: They want to know whether the ACLU and other civil rights organizations that spoke out against the law influenced the DOJ’s decision to file a lawsuit July 6. The DOJ lawsuit was one of seven legal challenges to SB 1070, including a suit filed May 17 by the ACLU and a coalition of civil rights groups.

From the press release:

“The American people ought to know if the Obama Justice Department is being run by radical leftist organizations such as the ACLU.  I suspect that the Obama Justice Department is making decisions on behalf of its leftist allies, instead of in the public interest,” said Judicial Watch President Tom Fitton.  ”This is a simple request for information.  The Obama administration should stop stonewalling and release these basic documents on its decision to attack Arizona over its get-tough illegal immigration law.”

The DOJ has maintained that its lawsuit is based on concern that the Arizona law preempts federal law and could harm the federal government’s ability to set priorities on immigration enforcement and foreign policy.

Of course, Judicial Watch isn’t exactly impartial: The press release notes the organization represents Russell Pearce, the Arizona state senator who wrote SB 1070.

TRAC requested a large set of data as part of its research on who is caught by ICE. Its FOIA request is very detailed, asking for information on detainee-by-detainee data on when and where illegal immigrants were arrested, how many family members they have in the U.S. and the final result of enforcement process. But ICE said in a response letter on Sept. 22 that much of this information was unavailable. (Click here to see a spreadsheet of the data requested.) This includes information ICE has released for detainees before, including their marital status, where they were detained and where they are being held now. Available information would cost TRAC $450,000, the ICE letter said — even though TRAC is part of an educational institution.

This time, though, a representative from ICE said the agency cannot provide information on certain topics, but did not explain why. TRAC argues this is a violation of the agency’s rules, the Obama administration’s stated commitment to transparency and FOIA policies, which require federal agencies to state specific reasons for keeping data from FOIA requesters.

The information requested by TRAC would be helpful to researchers and observers hoping to put numbers to the debate over immigration enforcement. While the Obama administration touts its increased enforcement, particularly of illegal immigrants who commit crimes, little is known about who the detainees are and how they enter the detention system. Without the information, it is difficult to challenge the images of illegal immigrants promoted by either side of the debate: from the right, illegal immigrants as dangerous criminals who must be removed; from the left, hard-working family members caught in an unfair system. There are likely elements of each, but additional information on detainees could clarify the picture.

The administration began posting online a partial log of White House visitors, and it instituted policies aimed at responding more quickly and completely to Freedom of Information Act requests from journalists, academics and the public. It has also restricted the hiring of lobbyists within the administration, banned gifts from lobbyists and taken other steps to slow the “revolving door” between government and the private sector.

But for transparency junkies, it wasn’t all roses:

On transparency issues, the administration has raised concerns among open-government advocates by regularly using the “state secrets” privilege to continue keeping some national security issues out of public view, and Mr. Obama reversed course last year and refused to make public photos showing abuses of terrorism detainees. The controversy over the public release of some 90,000 documents from the Afghanistan war by the group WikiLeaks could result in more pressure to limit public disclosures.

And then there’s superlobbyist Tony Podesta, who jokingly hailed Eisen’s departure ”the biggest lobbying success we’ve had all year.” Maybe the watchdog groups have good reason to be worried after all.

Detainees at the Willacy County Immigration Detention Center in Raymondville, Texas (Delcia Lopez/San Antonio Express-News/ZUMA Press)

The number of immigrants in detention in the United States has more than doubled since 1999, according to a new report from a government data research organization released Wednesday. The report, based primarily on information obtained through the Freedom of Information Act from the Immigration and Customs Enforcement agency, also finds that ICE has increasingly transferred detainees more often and to facilities farther from where they were apprehended, disrupting contact with family members and attorneys attempting to represent them in their deportation cases.

[Immigration]ICE detains people suspected of violating civil immigration laws, not criminal laws. Still, in fiscal year 2009, ICE imprisoned 369,483 immigrant detainees — more than twice the number it held in FY 1999. In fact, according to an October report from ICE, the agency now operates the largest detention and supervised release program in the country. Although the average length of detention is 30 days, that includes those apprehended at the border and sent home within a day, which is about 25 percent of detainees. According to ICE, about 2100 immigrants are detained for a year or more.

The swelling of the immigrant detainee population is the result of changes in the law and increasingly aggressive enforcement measures. In 1996, Congress changed the immigration law to require the detention of certain categories of immigrants, such as those convicted of crimes, including misdemeanors, and all applicants for asylum. These immigrants are not entitled to a bond hearing, as criminal defendants are, to determine whether they’re actually a flight risk. According to a recent ICE review of the detention system, only eleven percent of immigrant detainees in custody had committed violent crimes. “The majority of the population is characterized as low custody, or having a low propensity for violence,” the recent ICE report found.

More recently, ICE has also stepped up enforcement of the civil immigration laws, expanding two controversial programs in just the past year that has led to a growing number of immigration detentions. The 287(g) program, named for the section of the immigration law that authorizes it, allows local law enforcement to arrest and detain anyone suspected of violating federal immigration laws. ICE has also expanded a program called Secure Communities, started by the Bush administration, which requires local police to check the immigration status of everyone booked into a local jail. Before trial or conviction, all suspects are fingerprinted and their identifying information is sent to ICE to determine their immigration status. (ICE maintains fingerprint data on all individuals who have had contact with immigration authorities.) Undocumented immigrants can eventually be deported, regardless of whether they are convicted on criminal charges.  Those convicted are deported after serving their sentences. DHS, which recently received $200 million to expand Secure Communities, has estimated that “tens of thousands” more immigrants will be deported under the Secure Communities program next year.

“As programs like that are implemented across the country the need for ICE to develop a risk assessment tool becomes increasingly important because the number of people who will be entering the enforcement system is going to grow exponentially,” said Jackie Esposito, policy director for the Detention Watch Network. “It’s a human rights issue and a due process issue, that people should not be detained without an individualized determination as to their custody status. But it’s also becoming a management necessity for ICE to really take a hard look at its detention population and start making decisions about who needs to be detained.”

ICE itself has acknowledged the problem, and in an October report from Dr. Dora Schriro, former Director of the Office of Detention Policy and Planning, she concludes that ICE needs to do a better job of assessing the risks associated with individual detainees in order to house and treat them appropriately.

Esposito acknowledges this, but says that “it’s unclear what the status of those efforts are and how widely implemented such a reform will be. At this point we have not seen any evidence that a risk assessment tool is going to replace the current practices in the field across the country.”

Judy Rabinovitz, Deputy Director of the American Civil Liberties Union’s Immigrants Rights Project, said that ICE’s focus so far has been on the conditions of detention. “That’s really important, but that’s not questioning the fundamental principle of, why are we locking so many people up?” In addition to the human cost, she noted, there’s a huge economic cost.

The other problem with the growing number of detainees is that there’s insufficient capacity at many detention centers to house them. As a result, ICE has increasingly transferred detainees multiple times to different facilities, often far from where they were apprehended. “Ten years ago only one out of twenty detainees experienced multiple transfers,” the TRAC report finds. “In FY 2008 one out of every four detainees (24%) was subject to multiple transfers.”

The consequences, notes Human Rights Watch, which released its own report today assessing the impact of transfers, can be devastating.

One detainee told Human Rights Watch that after living in upstate New York for 10 years with his wife and four children, ICE said he was deportable because of an old marijuana possession conviction, for which he had paid a fine and never served jail time. Detained in New York City, he was sent, just days later, to a detention center in New Mexico. “In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico,” he said from the Otero County Processing Center in Chaparral, New Mexico in February. “All my evidence and stuff that I need is right there in New York. I’ve been trying to get all my case information from New York … But they won’t give me my records, they haven’t given me nothing. I’m just representing myself with no evidence to present.”

Rebecca Schreve, an immigration lawyer in El Paso, Texas, told Human Rights Watch researchers that detainees “are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what state they are in….I have taken calls from seriously hysterical family members—incredibly traumatized people—sobbing on the phone, crying out, ‘I don’t know where my son or husband is!’ “

The recent ICE report acknowledges that attorneys representing detainees have complained that their clients are often transferred to detention centers far away and without notice, making legal representation extremely difficult. The report therefore only recommends that those who are represented by attorneys “should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.”

On Wednesday, ICE responded to the TRAC and Human Rights Watch reports. “ICE is in the process of fundamentally overhauling our immigration detention system to establish consistent standards across the country, prioritize risk, strengthen oversight and increase efficiency,” says the agency’s statement. “ICE will also soon submit a plan to Congress to implement an alternatives to detention program nationwide for low-risk individuals. These steps will not only enhance accountability and safety in our system, but will also reduce detainee transfers that can separate detainees from counsel and prolong their legal proceedings.”

This story was updated to include a response from ICE.

Defense Secretary Robert Gates in mid-November invoked his new authority under the law to keep the photos concealed, saying that distribution of the photos would endanger U.S. troops abroad.

The Associated Press reports that the ACLU vows to continue fighting for the photos’ release.

The ACLU, meanwhile, has identified an important point about the chronology of the CIA’s internal communications about the tapes. Although the communications remain classified, the dates and summaries of their content provided by the government reveals that a request to destroy the 92 tapes were  made just days after The Washington Post reported on the existence of secret overseas CIA prisons known as “black sites.” Another request was made on the day The New York Times reported that the CIA inspector general had issued a report questioning the legality of the agency’s interrogation methods.

The tapes were destroyed that same day.

“At Guantanamo, the U.S. government turned a jukebox into an instrument of torture,” said Thomas Blanton, the Archive’s executive director, in a statement released today. “The musicians and the public have the right to know how an expression of popular culture was transformed into an enhanced interrogation technique.”