Jan 27 2012

Retroactive Privacy Act exemptions could cost a US citizen his life

In his ruling this week in Hasbrouck v. CBP, Judge Seeborg of the US. District Court for the Northern District of California suggested that US citizens have no “rights” that would be prejudiced by applying newly-issued Privacy Act exemption rules to previously-made requests for government records.

But a parallel case currently before the U.S. District Court in DC shows how retroactive application of Privacy Act exemptions can be a potentially life-or-death issue.

Sharif Mobley is a native-born U.S. citizen who was living in Yemen with his wife (also a US citizen) and their two infant children when he was shot and seized by agents of the Yemeni government in January 2010, and taken to a Yemeni hospital in police custody.  He’s been in a Yemeni prison ever since, and needs US government records to defend himself against capital charges.

Although no charges have ever been brought against Mobley for anything that happened prior to his seizure, he now faces the death penalty (under Yemeni law) for allegedly killing a guard in an attempted escape from the hospital on March 7, 2010.

According to his lawyers’ latest filing with the U.S. District Court hearing his Privacy Act lawsuit:

Mobley maintains that his seizure was a kidnapping carried out at the behest of the U.S. government. There are provisions of Yemeni law which suggest that it is legal to use deadly force to escape a kidnapping.

The Yemeni prosecutorial file contains no records prior to 7 March 2010.  For this reason, there is no evidence that is available to the Yemeni court regarding how Mobley came to be in police custody, his interrogation by U.S. government agents while in the hospital, his inhumane treatment at the hospital, or why he would have felt compelled to escape.

The Yemeni judicial system does not allow for any significant discovery procedures for exculpatory information. Therefore, the records at issue in this request are necessary to support his defense.

All this seems, on its face, quite plausible. The US-supported Yemeni government has been notorious for torture, extra-judicial executions, and other human rights abuses against its citizens and foreigners alike.  In the last few years, Yemen seems to have displaced Cuba at the top of the list of places the US doesn’t want us to travel. People who have traveled to Yemen have had their bank accounts frozen, been placed on the “no-fly” list, been prevented from traveling between other countries, and been detained on the instigation of the US, interrogated, and tortured by other US-allied governments while being prevented from returning home to the USA (even as the former Yemeni torturer-in-chief was given immunity from prosecution in Yemen and offered refuge in the US).

We, too, would be justified in fearing for our lives if we were detained in Yemen at the behest of the US government.

One can scarcely imagine any more vital personal interest in US government records about individuals than that they might be only possible source of exculpatory evidence needed to save a US citizen from the death penalty.

Meanwhile, in July, 2011, the DHS gave notice that it was maintaining a mirror copy of the FBI’s Terrorist Screening Database. The DHS could simultaneously have published an “interim final rule” exempting these records from Privacy Act disclosure requirements, but chose not to do so. Instead, the DHS published a notice and request for public comments on a proposed exemption rule.

Mr. Mobley, through his lawyers in the US, took this opportunity to file a request with the DHS in August 2011 for any records about him contained in the watchlist database.

The first response of the DHS was to deny that it was responsible for its mirror copy of the watchlist records, despite the formal notice to the contrary it had published in the Federal Register. When Mr. Mobley sued, and applied for an injunction ordering DHS to process his request under the Privacy Act, the DHS backed down and promised to process Mr. Mobley’s request on an expedited basis.

Instead of processing Mr. Mobley’s request, however, the DHS sent his lawyers a lying letter on December 21, 2011, falsely claiming that “the Secretary of Homeland Security has exempted this
system of records from 5 USC §552a(d), the access provision of the Privacy Act.”

In fact, as of the date of the DHS letter the Secretary of Homeland Security hadn’t yet exempted those records from the access provision of the Privacy Act. But on December 29, 2011, the DHS finally got around to promulgating a regulation exempting its copy of the watchlist database from those requirements.

Mr. Mobley has now moved the court, once again, for an injunction ordering the DHS to process his request for records about him from the DHS mirror copy of the watchlist database. Briefs by both sides are due next week.

(Of course, if the DHS had processed the request in the first place as it was legally required to do, according to the regulations then in effect, instead of first denying its responsibility and then lying about the status of the exemption rulemaking, Mr. Mobley would have already received the records about himself, and it would be irrelevant to his request whether the new regulations could be applied retroactively.)

The court’s decision is likely to turn on whether the regulations applied to Mr. Mobley’s request should be those in effect at the time the request was made and the lawsuit was filed, or those subsequently promulgated by the DHS in response to the request (which DHS had already violated the law and regulations then in effect by refusing to process).

And that decision may in turn determine whether Mr. Mobley obtains the records he needs to establish his defense and save himself from a Yemeni firing squad.

Why do we care about our right of access to government records about us? We care because, as Mr. Mobley’s case shows, that right can be be a matter of life or death.

One thought on “Retroactive Privacy Act exemptions could cost a US citizen his life

  1. Pingback: Papers, Please! » Blog Archive » U.S. Embassy in Sana’a seizing U.S. citizens’ passports

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