Federal District Court Reports the Government Lied to It

The case is Islamic Shura Council v. FBI (C.D. Cal. Apr. 27). After the lie was found out, the government claimed it had a right to lie to the court in order to conceal national security secrets. (The claim wasn’t just that the government should insist on only revealing the facts to the judge in chambers, with the other side absent; the claim was that the government may just make false statements to the judge.) The judge didn’t agree. For more, read the opinion, though here’s an excerpt:

The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

The United States Constitution entrusts the Judiciary with the power to determine compliance with the law. It is impossible for the Court to determine compliance with the law and to protect the public from Government misconduct if the Government misleads the Court. The Court simply cannot perform its constitutional function if the Government does not tell the truth….

The Government contends that the FOIA permits it to provide the Court with the same misinformation it provided to Plaintiffs regarding the existence of other responsive information or else the Government would compromise national security. That argument is indefensible. Although the FOIA allows the Government to withhold certain categories of documents from requestors such as Plaintiffs pursuant to statutory exemptions, 5 U.S.C. § 552(b), or exclusions, 5 U.S.C. § 552(c), the FOIA does not permit the Government to withhold responsive information from the Court. Islamic Shura Council of S. Cal. v. Fed. Bureau of Investigation, __ F.3d __, No. 09-56035, 2011 WL 1136258, at *4–5 (9th Cir. Mar. 30, 2011) (“We thus agree with the district court that the FOIA does not permit the government to withhold information from the court.”).

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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