The reported detention and interrogation of Iranian Americans in Washington state over the weekend raises an obvious question: was this an isolated incident, or is the Trump administration now rolling out an interrogation and possible detention program targeting persons of Iranian heritage? A FOIA response from the Justice Department I received in May 2019 may offer a telling clue. First, a little background.
In April 2019, not long after President Trump designated the Iranian Revolutionary Guard Corps (IRGC) a terrorist organization, I decided it would be a good idea to find out if the administration was engaged in any other war planning with Iran that would have a domestic nexus. Specifically, I wanted to know if the administration had plans on the shelf to detain persons of Arab or Iranian heritage in the event of yet another war with a country in the region.
Accordingly, I submitted Freedom of Information Act (FOIA) requests to the Department of Justice (multiple components, including the FBI), United States Northern Command (NORTHCOM), the Department of Homeland Security (DHS), the Internal Revenue Service (IRS), the United States Postal Service (USPS), and the Census Bureau. I picked these agencies or departments because each has, in past wars, played key roles in either the surveillance of ethnic populations deemed a threat or actually incarcerating persons of a particular ancestry who happened to be from a country at which we were at war.
As the FOIA responses rolled in over the next few months, I got the typical “Your request is too broad” or similar dodges from DHS, the Postal Service, and the IRS. NORTHCOM didn’t even bother to respond, and neither did the FBI. But the Department of Justice, via its Office of Information Policy, did respond.
With regard to the second part of my FOIA request for any records regarding “implementation of detention programs for persons of Arab or Persian/Iranian heritage in the event of the declaration of a national emergency, declaration of war, or authorization for the use of military force against certain entities,’ DoJ said this:
With regard to part 2 of your request, I can neither confirm nor deny the existence of such records. The existence or non‐existence of such records would be protected pursuant to Exemption 7(E) of the FOIA, 5 U.S.C. § 552(b)(7)(E), which concerns records or information compiled for law enforcement purposes, the release of which would disclose techniques or procedures for law enforcement investigations or prosecutions.
That infamous “neither confirm nor deny” language is what’s known in the FOIA world as a “Glomar” response — a more than 40 year old judicially created carveout from FOIA that makes it possible for an agency or department to dodge a FOIA request on a particular topic, absent a review by a judge. It was not until 2010 that the CIA admitted the original Glomar case had been used to hide its partially successful efforts to raise a sunken Soviet sub from the Pacific Ocean via billionaire Howard Hughes’ deep sea mining vessel Glomar Explorer.
More recently, CIA attempts to “Glomar” the ACLU over the existence of the agency’s “Drone War” in Iraq and Afghanistan failed. And just last year, the Reporter’s Committee for Freedom of the Press won its Glomar FOIA case against the FBI, which had argued that it properly invoked Glomar to avoid confirming or denying whether its agents sometimes impersonate journalists. In each of these national security or law enforcement cases, the “Glomar” invocation in question was used to cover a real activity undertaken by the agency or department in question.
So does DoJ have a plan on the shelf to detain persons of Iranian heritage in the event of a conflict with Iran? If so, is that plan part of a larger “whole of government” effort also involving, among other elements, DHS’s Customs and Border Protection? CBP denied it in a late Sunday afternoon tweet. However, the specific accounts of Iranian Americans allegedly detained by CBP personnel at the Peace Arch Border Crossing as relayed to CAIR, as well as the history of such detentions and interrogations in this country, make the scenario frighteningly plausible. It’s one reason I have two active detention‐related FOIA lawsuits — one against NORTHCOM, the other against the Postal Service—grinding away in the D.C. Circuit, with more likely on the way.