Thursday, May 2, 2013

Lt. Daniel Choi - Vindictive Prosecution DOJ FOIA Request

After requests for information went unanswered, I filed a Freedom of Information Act request with the Department of Justice as a follow-up to a blog post about the selective nature of the prosecution, among other issues, in the government's case against Lt. Choi.

2013-04-30 Lt Daniel Choi DOJ FOIA Request Louis Flores by Connaissable

My request is heavily patterned after a separate and unrelated request submitted by the ACLU. Let's see what we learn....

Here is the full text of the FOIA request :

30 April 2013

Department of Justice
EOUSA/FOIA/PA Staff
BICN Bldg.
600 E Street, N.W., Suite 7300
Washington, D.C. 20530-0001

Ladies and Gentlemen :

Re : REQUEST UNDER FREEDOM OF INFORMATION ACT/
     Expedited Processing Requested

This letter constitutes a request (“Request”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., the Department of Justice implementing regulations, 28 C.F.R. § 16.1 et seq., the President’s Memorandum of January 21, 2009, 74 Fed. Reg. 4683 (Jan. 26, 2009), and the Attorney General’s Memorandum of March 19, 2009, 74 Fed. Reg. 49,892 (Sept. 29, 2009). I submit this Request as a blogger.

This Request seeks records pertaining to the prosecution of Lt. Daniel Choi (“Lt. Choi”). Lt. Choi was arrested on Nov. 15, 2010 on a public sidewalk adjacent to the White House, during a protest against the military’s former policy known as “Don’t Ask, Don’t Tell.” On March 27, 2013, I submitted a request for information in an e-mail addressed to Angela George of the U.S. Attorney’s Office (attached hereto as Exhibit A) (“Original Request”) requesting various information and records pertaining to the prosecution of Lt. Choi. Other officers with the Department of Justice were also copied on this e-mail. I specifically mentioned in my Original Request that I requested answers to my questions, or, if there was another process, which I had to follow to submit an “official” request for information, I alternatively requested that I be informed by the U.S. Attorney’s Office of such process. The U.S. Attorney’s Office was non-responsive to this e-mail, so I sent a follow-up e-mail on April 10, 2013 (attached hereto as Exhibit B). The U.S. Attorney’s Office was non-responsive to this e-mail, so I forwarded the e-mail chain of my requests for information and records on April 16, 2013 to a general e-mail inbox for the Department of Justice (attached hereto as Exhibit C), to which I finally received an acknowledgement and further instruction dated April 17, 2013 (attached hereto as Exhibit D), which gives rise to this Request.

This Request seeks information and records pertaining to the nature and purpose of the U.S. Attorney’s Office’s prosecution of Lt. Choi. Many activists question why the Department of Justice has sought to prioritise the prosecution of activists, such as the late Aaron Swartz and Lt. Choi. Are prosecutors being told to prosecute activists ? The nature of some of the prosecutions of activists have been portrayed in the press to be “rife with intimidation and prosecutorial overreach.” See, e.g., Noam Cohen, A Data Crusader, a Defendant and Now, a Cause, N.Y. Times, Jan. 14, 2003, at A1. Given this prosecutorial tone, has there been any intention to express disrespect to Lt. Choi during the proceedings of the prosecution ? What explains why the U.S. Attorney’s Office refused to address Lt. Choi by his official military rank ? How aggressive were prosecutors instructed to pursue Lt. Choi ? What have been the cumulative costs of the prosecution of Lt. Choi ?

In several press reports, the Department of Justice was portrayed to be engaged in a “vindictive prosecution” against Lt. Choi. See, e.g., Scott Wooledge, Updated: Judge Allows Lt Dan Choi’s “vindictive prosecution” Defense, Daily Kos, (Aug. 31, 2011), http://www.dailykos.com/story/2011/08/31/1012290/-Updated-Judge-Allows-Lt-Dan-Choi-s-vindictive-prosecution-Defense#. And then, before the nature and purpose of the selective prosecution of Lt. Choi could become public information, prosecutors quashed the effort to expose the selective prosecution. See Lou Chibbaro Jr., Judge rules against Choi in ‘vindictive’ prosecution claim, Washington Blade (Oct. 17, 2011), http://www.washingtonblade.com/2011/10/17/judge-rules-against-choi-in-‘vindictive’-prosecution-claim/.

Further reports suggest prosecutorial overreach or vindictive prosecution is not limited to the late Mr. Swartz or to Lt. Choi. The scope of other prosecutions, namely, the prosecution of PFC Bradley Manning, could lead to treating all whistleblowers as traitors. This treatment has been described as “extraordinary prosecutorial overkill.” See Amy Goodman & Glenn Greenwald, Glenn Greenwald on Bradley Manning: Prosecutor Overreach Could Turn All Whistleblowing into Treason, Democracy Now (March 5, 2013), http://www.democracynow.org/2013/3/5/glenn_greenwald_on_bradley_manning_prosecutor.

Despite these publicized concerns, the Department of Justice remains silent about its intentions with respect of its prosecution of activists. Indeed, the U.S. Attorney’s Office was non-responsive to my Original Request. It is unclear why federal prosecutors are persecuting activists. The public has little information about the internal accountability mechanisms by which laws and rules govern the targeted prosecutions of activists. Nor does the public have any information about how the Department of Justice balances First Amendment rights, other Constitutional rights, civil liberties, and other civil rights of activists against the charges that the Department of Justice brings against activists. Without this information, the public is unable to make an informed judgment about the Department of Justice’s targeted prosecutions of activists. I make the following requests for information in hopes of filling that void.

I. Requested Records

     1. All records and information pertaining to the legal basis of prosecuting activists, who engage in protests, including, but not limited, to records and information regarding :

     A. what kind of activists may be targeted for prosecution, how many activists have been targeted for prosecution, what are the names of such activists, and which Department of Justice officials approved of such prosecution of activists ;

     B. whether the nature and purpose of prosecution of activists may be aggressive, selective, or involve overreach, and which Department of Justice officials approve of such nature and purpose of prosecution of activists ;

     C. limits, rules, procedures, or other guidelines that must or should be taken into consideration before, during, and after the prosecution of activists to mimimise the interference with First Amendment rights, other Constitutional rights, civil liberties, and other civil rights of activists ;

     D. consideration of other circumstances, conditions, and restrictions that form any part of the decision to target activists for prosecution ; and, if such considerations exist, under what circumstances, under what conditions, and subject to what restrictions ;

     E. any and all agency, executive, judicial, or congressional reports, memoranda, records, and information, which provide any description of the process for the determination as to whether activists can be targeted for prosecution ; and

     F. whether agencies other than the Department of Justice may target activists for prosecution, and, if so, under what circumstances, under what conditions, and subject to what restrictions ; and which agency officials approve of such prosecution of activists.

     2. All records and information created on or after Nov. 12, 2010, pertaining to the legal basis for the arrest and/or prosecution of Lt. Choi, including, but not limited to, records and information regarding :

     A. whether the prosecution of Lt. Choi was part of any Department of Justice’s process to target activists ; and

     B. the limits of the Department of Justice’s prosecution to mimimise the interference with First Amendment, other Constitutional rights, civil liberties, and other civil rights of Lt. Choi.

     3. All records and information created on or after Nov. 12, 2010, pertaining to the legal basis for the Department of Justice or U.S. Attorney’s Office to fail to refer to Lt. Choi by his military rank, in accordance with Army Regulation 670-1.

     4. The total cost of the prosecution of Lt. Choi, including, but not limited to :

     A. any and all records and information created on or after Nov. 12, 2010, pertaining to the cost of arresting and/or prosecuting Lt. Choi, including, but not limited to, records and information regarding :

     a. any and all agency, executive, judicial, or congressional reports, memoranda, records, and information, which indicate, calculate, or analyze the budged and actual cost of the prosecution of Lt. Choi ;

     b. any and all records of the cost of staff costs, staff benefits, travel, transcripts, accommodations, meals, non-attorney investigation costs, research costs, other investigation costs, and all other costs on the prosecution of Lt. Choi ;

     c. any and all records of the costs of fact and expert witnesses in connection with the prosecution of Lt. Choi ;

     d. any and all records of assistance provided by other law enforcement agencies in connection with the prosecution of Lt. Choi ; and

     e. any and all records of hours worked, paid or unpaid overtime hours, and other information about personnel hours worked in connection with the prosecution of Lt. Choi.

II. Application For Expedited Processing

I request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) ; 22 C.F.R. § 171.12(b) ; 28 C.F.R. § 16.5(d) ; 32 C.F.R. § 286.4(d)(3) ; 32 C.F.R. § 1900.34(c). There is a “compelling need” for these records, because the information requested is urgently needed in order to be disseminated to inform the public about actual or alleged Federal Government activity. 5 U.S.C. § 552(a)(6)(E)(v) ; see also 22 C.F.R. § 171.12(b)(2) ; 28 C.F.R. § 16.5(d)(1)(ii) ; 32 C.F.R. § 286.4(d)(3)(ii) ; 32 C.F.R. § 1900.34(c)(2).

In addition, the records sought relate to a “breaking news story of general public interest.” 22 C.F.R. § 171.12(b)(2)(i) ; 32 C.F.R. § 286.4(d)(3)(ii)(A) ; see also 28 C.F.R. § 16.5(d)(1)(iv) (providing for expedited processing in relation to a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence”).

As a blogger, I am “primarily engaged in disseminating information” within the meaning of the statue and regulations. 5 U.S.C. § 552(a)(6)(E)(v)(II) ; 22 C.F.R. § 171.12(b)(2) ; 28 C.F.R. § 16.5(d)(1)(ii) ; 32 C.F.R. § 286.4(d)(3)(ii) ; 32 C.F.R. § 1900.34(c)(2). Dissemination of information to the public is a critical and substantial component of my mission and work. See, e.g., Jonathan Lemire, Christine Quinn detractors use social media in effort to quash her mayoral run, N.Y. Daily News (April 14, 2013), http://www.nydailynews.com/news/politics/online-effort-quash-christine-quinn-mayoral-aspirations-article-1.1316224 ; Jill Colvin, Christine Quinn Foes Prepare Campaign to Spoil Her Mayoral Hopes, DNAinfo (Jan. 9, 2013), http://www.dnainfo.com/new-york/20130109/new-york-city/christine-quinn-foes-prepare-campaign-spoil-her-mayoral-hopes. I publish several blogs, produce YouTube videos, and manage several Twitter feeds. Such material is widely available to everyone. This Request originated from questions posted to the U.S. Attorney’s Office, so that I could update this specific blog post : http://ny-popculture-politics.blogspot.com/2013/03/lt-dan-choi-dadt-trial-update.html.

The records and information sought directly relate to a breaking news story of general public interest that concerns actual or alleged Federal Government activist ; specifically, the records and information sought relate to the U.S. Government’s prosecution of activists. The records and information sought will help determine what is the government’s asserted legal basis for these targeted prosecutions, whether it conflicts with the First Amendment rights, other Constitutional rights, civil liberties, and other civil rights, how many activists have been prosecuted, and other matters that are essential in order for the public to make an informed judgment about the advisability of this tactic and the lawfulness of the government’s conduct. For these reasons, the records and information sought relate to a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” 28 C.F.R. § 16.5(d)(1)(iv).

There have been news reports about the prosecution of activists that imposes restrictions, burdens, and interferences with First Amendment, other Constitutional rights, civil liberties, and other civil rights of activists. After HIV/AIDS activists were arrested during a peaceful protest in Washington, DC, the U.S. Attorney’s Office demanded the drug-testing of activists, who were charged with nonviolent crimes, such as civil disobedience. The U.S. Attorney’s Office demand for drug-testing of HIV/AIDS activists was fraught with complications, because the activists may have had a prescription for medical marijuana or may have had prescriptions for other medications, which perhaps would have resulted in a false positive. See Trenton Straube, U.S. Attorney Requires Drug Tests for AIDS Protesters, POZ (Feb. 2012), http://www.poz.com/articles/DC_HIV_Marijuana_401_21944.shtml ; Martin Austermuhle, AIDS Activist Faces Trial After Use of Medical Marijuana Sinks Hopes for Dismissal of Charges, dcist (Feb. 9, 2012), http://dcist.com/2012/02/aids_activist_faces_trial_after_usi.php.

These news stories and investigative reports have also suggested that the prosecution of activists was unfair. These HIV/AIDS activists chained themselves together inside the office of House Majority Leader Eric Cantor (R-Va.) to protest, among other issues, cuts to HIV/AIDS programs. They were arrested on federal charges. On the same day as the HIV/AIDS activists were arrested, 41 D.C. voting rights activists, including Mayor Vincent Gray, were arrested on Capitol Hill. The voting rights activists were charged with misdemeanors by the D.C. attorney general. Most, including the mayor, paid a $50 fine. What explains why the U.S. Attorney’s Office was treating HIV/AIDS activists differently ? See Arin Greenwood, HIV/AIDS Activists Complain Of Unfair Treatment By U.S. Attorney's Office, Huffington Post (Feb. 8, 2012), http://www.huffingtonpost.com/2012/02/08/aids-activists-protest_n_1263144.html ; Brianne Carter, D.C. mayor Vincent Gray, councilmembers arrested : Protesters plead not guilty, WJLA (May 5, 2011), http://www.wjla.com/articles/2011/05/d-c-mayor-vincent-gray-councilmembers-arrested-protesters-to-appear-in-court--60103.html ; Debbie Siegelbaum, AIDS activists allege discriminatory treatment following Capitol arrest, The Hill (Feb. 8, 2011), http://thehill.com/homenews/house/209485-aids-activists-allege-discriminatory-treatment-after-capitol-protest-arrest.

Further news reports have caused concern that the prosecution of activists is influenced with political overtones. During his tenure as a U.S. Attorney, Patrick Fitzgerald targeted 23 activists, who were widely described as critics of U.S. foreign policy. See Peter Wallsten, Activists cry foul over FBI probe, The Washington Post (June 13, 2011), http://articles.washingtonpost.com/2011-06-13/politics/35235946_1_activists-cry-stephanie-weiner-targets ; Kevin Gosztola, FBI Continues to Target Activists in Chicago and Minneapolis (VIDEO), Firedoglake (Dec. 9, 2010), http://my.firedoglake.com/kgosztola/2010/12/09/fbi-continues-to-target-activists-in-chicago-and-minneapolis/ ; Josh Gerstein, After 1 year, FBI returns property to Minnesota anti-war activists, Politico (Nov. 3, 2011), http://www.politico.com/blogs/joshgerstein/1111/FBI_returns_property_to_Minnesota_antiwar_activists.html.

The activist community and the public-at-large are unable to determine the nature and purpose of the prosecution of activists, because there is a lack of reliable information about the reasons the Department of Justice is prosecuting activists. Indeed, even Congress is left in the dark about the motivations behind the prosecution of activists. See, e.g., Kim Zetter, Congress Demands Justice Department Explain Aaron Swartz Prosecution, Wired (Jan. 29, 2013), http://www.wired.com/ threatlevel/2013/01/doj-briefing-on-aaron-swartz/ ; Marcy Wheeler, Aaron Swartz reveals the hypocrisy of our Justice Department, Salon (Jan. 15, 2013), http://www.salon.com/2013/01/16/aaron_swartz_reveals_the_hypocrisy_of_our_ justice_department/. And in respect of Lt. Choi, a magistrate judge had found that was indication that the Department of Justice was singling out Lt. Choi for “vindictively prosecution.” See John Aravosis, Judge finds prima facie evidence that US government may have “vindictively prosecuted” Dan Choi, AMERICAblog (Aug. 31, 2011), http://americablog.com/2011/08/judge-finds-prima-facie-evidence-that-us-government-may-have-vindictively-prosecuted-dan-choi.html ; Scott Wooledge, Updated: Judge Allows Lt Dan Choi’s “vindictive prosecution” Defense, Daily Kos (Aug. 31, 2011),http://www.dailykos.com/story/2011/08/31/1012290/-Updated-Judge-Allows-Lt-Dan-Choi-s-vindictive-prosecution-Defense# ; and Chris Geidner, Government Files Motion to Stop "Vindictive Prosecution" Defense in Choi Trial, Metro Weekley (Sept. 16, 2011), http://www.metroweekly.com/poliglot/2011/09/government-filed-motion-to-sto.html.

III. Application for Waiver or Limitation of Fees

I request a waiver of search, review, and duplication fees on the grounds that disclosure of the requested records is in the public interest, because it “is likely to contribute significantly to public understanding of operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii) ; 22 C.F.R. 171.17(a) ; see also 28 C.F.R. § 16.11(k)(1) ; 32 C.F.R. § 286.28(d) ; 32 C.F.R. § 1900.13(b)(2).

As discussed above, numerous news accounts reflect the considerable public interest in the requested records and information. Given the ongoing and widespread media attention to this issue, the records and information sought in the instant Request will significantly contribute to public understanding of the operations and activities of the Department of Justice and the U.S. Attorney’s Office with regard to the targeting of activists for prosecution. See 22 C.F.R. 171.17(a)(1) ; 28 C.F.R. § 16.11(k)(1)(i) ; 32 C.F.R. § 286.28(d) ; 32 C.F.R. § 1900.13(b)(2). Moreover, disclosure is not in the ACLU’s commercial interest. Any information disclosed by me as a result of this Request will be available to the public at no cost. Thus, a fee waiver would fulfill Congress’s legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossitti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) (“Congress amended FOIA to ensure that it be ‘liberally construed in favor of waivers for noncommercial requesters.’” (citation omitted)) ; OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, § 2 (Dec. 31, 2007) (finding that “disclosure, not secrecy, is the dominant objective of the Act,” but that “in practice, the Freedom of Information Act has not always lived up to the ideals of that Act”).

I also request a waiver of search and review fees on the grounds that I qualify as a “representative of the news media,” and the records and information are not sought for commercial use. 5 U.S.C. § 552(a)(4)(A)(ii) ; 28 C.F.R. § 16.11(d). Accordingly, fees associated with the processing of the Request should be “limited to reasonable standard charges for document duplication.” 5 U.S.C. § 552(a)(4)(A)(ii)(II) ; see also 32 C.F.R. § 286.28(e)(7) ; 32 C.F.R. § 1900.13(i)(2) ; 22 C.F.R. 171.15(c) ; 28 C.F.R. § 16.11(d) (search and review fees shall not be charged to “representatives of the news media”).

I meet the statutory and regulatory definitions of a “representative of the news media” because I function as an “entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” 5 U.S.C. § 552(a)(4)(A)(ii).

* * *

Pursuant to applicable statute and regulations, I expect determination regarding expediting processing within 10 calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I) ; 22 C.F.R. 171.12(b) ; 28 C.F.R. § 16.5(d)(4) ; 32 C.F.R. § 286.4(d)(3) ; 32 C.F.R. § 1900.21(d).

If the Request is denied in whole or in part, I ask that you justify all deletions by reference to specific exemptions to FOIA. We expect the release of all segregable portions of otherwise exempt material. We reserve the right to appeal a decision to withhold any information or to deny a waiver of fees.

Thank you for your prompt attention to this matter. Please furnish all applicable records to :

Louis Flores
()
New York, NY 10011

I affirm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief.

Sincerely,

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