NYCLU Sues Over Secret FBI Data-Mining Program, ‘Operation Darkening Clouds’

The previously undisclosed program was revealed in a U.S. Department of Homeland Security document the FBI released last year in response to a federal Freedom of Information Act (FOIA) request filed by students at Yale Law School.

In that document, the FBI disclosed that during the “pre-invasion” of Iraq, government personnel pulled together more than 130,000 immigration records and used them as the “cornerstone” for Operation Darkening Clouds and Operation Liberty Shield. Operation Liberty Shield, unveiled in 2003 by then-DHS Secretary Tom Ridge, authorized the indefinite detention of immigrants from certain countries.

In May 2007 the NYCLU submitted a request for records concerning the program under FOIA. The FBI denied the request on August 15, 2007 and rejected an NYCLU administrative appeal in March of this year. The NYCLU is now suing to compel the U.S. Department of Justice to release the public records.

“Over the past seven years, millions of law-abiding people have had their privacy breached by government agents, so Operation Darkening Clouds should come as no surprise,” said Donna Lieberman, executive director of the NYCLU. “But this regime of secrecy must stop. If the Bush Administration won’t come clean with what it’s doing, then it is time for the courts to step in and force it to do so.”

Since 9/11, the federal government has launched hundreds of data-mining operations, which often involve the consolidation and analysis of information about individuals not suspected of any wrongdoing. These programs, when revealed to the public, have drawn widespread criticism. The DOJ has resisted public scrutiny of its programs, rebuffing congressional, media and FOIA inquiries.

In this case, the FBI has invoked a “Glomar” response and will neither confirm nor deny the program’s existence. That defense was first used by the CIA when it refused to either confirm or deny the government’s involvement with the Hughes Glomar Explorer, a ship that Howard Hughes claimed to have built to mine the ocean floor. In fact, the vessel had been designed to recover a sunken Russian submarine, and Hughes was serving as a CIA front.

“The Freedom of Information Act is not a nicety that the government can choose to follow or to ignore: It’s the law,” said Daniel Freeman, a Liman Fellow at the NYCLU and a Yale Law graduate who helped initially uncover Operation Darkening Clouds. “It’s shocking that the very same official who signed off on releasing the document that revealed Operation Darkening Clouds exists is now refusing to confirm or deny the existence of the program. This is government secrecy at its most egregious.”

The NYCLU lawsuit seeks a court order barring the DOJ from claiming that it need not even acknowledge the existence of the program. It also seeks to compel the DOJ to produce all documents about the program that are not subject to legitimate exemptions to the FOIA.

“Programs like Operation Darkening Clouds run counter to our core American values by unfairly singling out immigrants and making them targets of suspicion and scrutiny,” Lieberman said. “Enough is enough. The Bush administration must stop eroding our privacy and diminishing the public’s already tarnished trust in government.”

Serving with Freeman as counsel on the case are Christopher Dunn, Arthur Eisenberg and Corey Stoughton of the NYCLU; Jameel Jaffer and L. Danielle Tully of the American Civil Liberties Union’s National Security Project; and Lee Gelernt and Amrit Singh of the ACLU’s Immigrants’ Rights Project.