‘Barbaric’ Conditions and Beetlejuice

Damning CRCL Reports Obtained in 3 Different FOIA Suits Demonstrate DHS’s Beetlejuice Problem

Three Lawsuits, Three Timelines

If you’re reading this, chances are you’ve probably also read or heard about Tom Dreisbach’s damning report for NPR on expert reports documenting ‘barbaric’ and ‘negligent’ ICE detention conditions. You may also have seen the Project on Government Oversight’s latest: “DHS’s Secret Reports on ICE Detention.” Maybe you even picked up on the fact that both NPR and POGO had to claw these records out of DHS and the DOJ through years of hard-fought litigation under the Freedom of Information Act (FOIA).

This post will not rehash these two invaluable additions to the 20-year litany of systemic harms and torture for people in ICE custody. We strongly encourage you to read each for yourself. When you do, you’ll have a hard time ignoring the basic truths these records capture. They’re truths the government itself documented: Conditions inside ICE prisons are indeed barbaric, and government-sponsored negligence has indeed caused the deaths of human beings locked inside these cages.

Instead, this post examines how NPR and POGO got these records. Or, more pointedly, the lengths to which the government went in hiding them. And then we’ll explain how the government hid them from one family whose loved one died because the experts’ warnings went unheeded.

Both NPR & POGO’s reporting covers expert reporting and recommendations DHS’s Civil Rights and Civil Liberties Office created about Stewart Detention Center in Lumpkin, Georgia. Here, for instance, is the NPR-obtained 2017 CRCL report that has a government expert describing the medical space at Stewart as “one of the dirtiest I’ve ever seen.” And here is the POGO-obtained On-Site Investigation Report from the same time period at Stewart.

NPR’s CRCL records apparently came from a 2020 FOIA lawsuit filed in the District of Columbia. CRCL lost summary judgment and NPR won in September 2022, according to court records.

POGO’s CRCL records apparently came from a 2018 FOIA lawsuit, also filed in DDC, and also pending before Judge Lamberth, who denied CRCL summary judgment and granted it to POGO in February 2023.

What’s odd about this timing is that Jean Jimenez’s Estate filed suit against CRCL in February 2018—before NPR or POGO—for the same subset of the records pertaining to the Stewart Detention Center that CRCL ultimately released to POGO and NPR in litigation. Among the records Jean’s family sought from CRCL on October 17, 2017:

All records relating to DHS HQ’s communications, assessments, and/or investigations into CoreCivic and Stewart County, Georgia’s compliance with their contracts to operate the Stewart Detention Facility in Lumpkin, Georgia beginning January 1, 2017 and continuing until the date of the agency’s response to this request

Until January 2023, CRCL maintained it had no records responsive to this request. CRCL’s DOJ lawyer, Anna Walker, gaslit Jean’s family when confronted with this May 2018 report that would appear directly responsive, claiming it did not fall within the language of their original FOIA request. Then, in April 2023—more than five years after Jean’s family filed suit, and AFTER both NPR and POGO had already won summary judgment against CRCL—the agency provided the damning Expert Recommendation and Review records on Stewart Detention Center.

They’re available here and here, and have been for the past 2 months. In an apparent act of rank incompetence or carelessness, rather than obstinate defiance of a judicial order, CRCL appears to have redacted portions of these records previously ruled non-exempt by Judge Lamberth. At best, the agency and its counsel are asleep at the wheel.

DHS’s Beetlejuice Problem

The confluence of these reports being released at this moment shows, and the background context of FOIA litigation that generated them, exposes a critical system failure in DHS’s FOIA process. The Department of Justice and its client, DHS, are asking courts to believe in all pending FOIA litigation about ICE detention conditions that they’re basically following the law, but simply overwhelmed and under-resourced. That’s why these requests take so long, they say.

DHS and DOJ maintain that courts should presume DHS FOIA officers are acting with “regularity” when describing FOIA operations. That is, the government’s lawyers routinely tell courts that DHS FOIA declarations are entitled to the presumption of regularity. That presumption allows the FOIA officers to avoid live testimony or cross-examination by requestors’ counsel. It’s why nobody ever asked whether CRCL intentionally withheld these records in litigation for years from NPR, POGO, and, in the case of the Stewart CRCL records, our own project.

DHS and DOJ forced not only POGO and NPR, but also our own project, to spend years litigating access to the same set of records. From the surface it looks like DHS-CRCL’s FOIA office was telling its DOJ lawyers things in at least three different FOIA litigations that were, at best, inconsistent with the agency’s obligations under federal law. Specifically, CRCL appears to have processed the same Stewart CRCL Expert FOIA records multiple times, and relied on the need for time to process those records to buy the agency delays in three different litigations.

FOIA’s Beetlejuice Provision, 5 USC 552(a)(2)(D)(ii)(II), should have prevented this from happening in the first place. The assertion that CRCL needed additional time to process these same records, made through its DOJ lawyers to multiple courts, demonstrates DHS FOIA and the DOJ AUSAs representing the agency are, at best, not even attempting to comply with FOIA’s affirmative disclosure provisions by inquiring upon receiving a FOIA request whether responsive records are potentially subject to the Beetlejuice Provision. That is, DHS CRCL’s FOIA Office appears to be engaged in a pattern and practice of violating the Act’s affirmative disclosure provisions.

This apparent pattern and practice of Beetlejuice violations should prompt FOIA requestors and courts to inquire the plausible factual basis DOJ might rely on to claim DHS’s FOIA Office is entitled to the presumption of regularity.

It’s an important question for us, because the government does this all the time when making declarations and assertions about its FOIA processing in litigation. The 100-year-old ‘presumption of regularity’ has been imported by courts from its original annunciation in a prosecutorial setting to the context of civil declarations filed by FOIA officers in support of motions for extension of time and for summary judgment in favor of the government. No other litigant gets this sort of presumption, and Congress has not directed courts to apply it.

If DHS is violating the affirmative disclosure provisions of the FOIA statute in how it processes FOIA litigation, and DOJ is (unintentionally but incontrovertibly) documenting those violations in court filings, we are curious to understand why courts would presume regularity prevails inside DHS FOIA. Unless lawlessness is regular, DHS CRCL’s FOIA Office seems to have forfeited the presumption that it acts in accordance with the Beetlejuice Provision. Consequently, any claim that the agency needs more time to process records should be met with a request for live testimony about when the agency searched its prior requests and releases to see if it had already done the thing it’s asking courts for more time to do.

In the Chaverra case, CRCL and DOJ’s Anna Walker told the Court with a straight face that it needed two months of additional time to process the records it contended it found in January 2023. These were records the agency already released to both POGO and NPR, both of whom submitted their requests and filed their FOIA suits after Jean’s Estate. Taking these representations at face-value, CRCL created work for itself that delayed access to these records for Jean’s family—work that wouldn’t have been required had the agency obeyed the Beetlejuice Provision. The presumption of regularity cannot and should not apply to such conduct, unless we choose to believe that government lawbreaking is just “regular”, and then decide to reward that lawbreaking.

What if courts held no presumption of regularity applies to DHS FOIA? One way that might happen is if FOIA litigants challenged it by seeking an opportunity to cross-examine every DHS FOIA declarant. Another way it could unfold is if litigants opposed the standard, patently unlawful 500 page-per-month review schedule DHS entities propose on the ground that the FOIA office hasn’t even checked to see if the records were already searched for and redacted, pursuant to the pattern and practice we’ve seen here. This opposition would find support in DHS-FOIA and ICE’s own FOIA training materials, neither of which instructs FOIA officials or agency FOIA POCs to review previously received requests for possible Beetlejuice records that may have already been located, processed, and released.

We anticipate the government will lean hard on these being isolated incidents that, despite multiple agency declarations and DOJ lawyers blessing the conduct, shouldn’t undermine the overall presumption of regularity as applied to FOIA processing. Not really the point, but fine. What happens then?

If it’s true that DHS FOIA gets the presumption of regularity despite these clear Beetlejuice problems, it’s equally true that DHS’s Expert Recommendations deserve that same presumption. We can presume that the ‘barbaric’ and ‘negligent’ conditions CRCL’s experts found exist. Several implications follow.

First, expedited processing is required for any FOIA about conditions in ICE custody under 6 CFR 5.5(e). That’s because the records touch on “a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence.” As previously discussed, ICE has admitted serial noncompliance with the 10-day timeframe for responding to expedited processing requests. Consequently, the agency cannot show due diligence in litigation, and thus, cannot qualify for the 500 page-per-month de facto Open America stay.

Second, because we have to presume the regularity of the process that produced CRCL’s Expert Reports, we must also grapple with the fact that basically all of the representations ICE and DHS leaders, federal contractors, auditors, and outside accreditors made about compliance with federal standards during the periods covered by CRCL’s Expert Reports appear, at best, to have been misleading. What NPR and POGO’s systems-level view of these CRCL Expert Reports & Recommendations add is a confirmation that the gaps between talk and reality that Jean’s family has documented at Stewart are not a one-off. Rather, they are a feature of a system that is not designed to care for and respect the dignity human beings—not a bug.

Third, and most important, we should ask ourselves individually and collectively what will be different now that we have these records in hand. What will we assume about the detention system and its supposed capacity to be reformed through review? What will we assume about the individuals and institutions who kept this information from the public for so long that it becomes history instead of news? What should we assume about the lived realities of people struggling inside these for-profit cages each day? If your theory of change is that oversight — even expert, independent oversight — can improve detention and reduce death, these records and the coverup the government engaged in to keep them under lock and key would seem to frustrate that theory.

How will we act now that we know? What will we who enjoy the privilege of not being locked inside one of these for-profit sites of preventable death-making do to alter the status quo?

‘Beyond Alarm, toward Action’

I must confess, learning that DHS experts called conditions inside ICE cages “barbaric” and “negligent” brings little hope for changing those conditions. Knowledge alone is insufficient. We’ve known for a long, long time that barbarism prevails.

As Kelly Hayes and Mariame Kaba write in Let This Radicalize You:

To move past the expectation that facts alone will transform people’s politics, we have to sit with our discomfort that oftentimes people know. When it comes to many of the issues around which we’re organizing, most people are aware of the problem, even if they are not acquainted with all the horrid particulars. In fact, some people might be quite familiar with the problem and still choose not to act.

What gives me hope for real change, and ultimately, for an end to this barbarism, are the people in struggle who are moving together to close these places and imagine just transitions away from human caging. There are active facility shutdown campaigns around the US, and the people leading those campaigns are winning. Not immediately. Certainly not always. But we are winning.

There is a larger coalescence of people organizing inside and being supported by folks outside coming together than at any point in the past two decades. Multiple states have banned or regulated ICE detention in response to movement organizing. Facilities are closing and contracts are being cut, even as ICE detention populations are on the rise.

People are coming together not simply to share the horrific truth about barbarity and negligence inside ICE cages. Plugging in can mean a lot of different things for different people. But if you’re here, and you’ve read this far, you probably already know the myriad ways we can move together to end this stain in our shared humanity.

But here are some more:

• Time. If you have time, get involved in a local visitation program or facility-based movement fight. Detention Watch Network is a great place to start if you’re not sure what’s going on near you. Freedom for Immigrants has a visitation network list as well. I’ve found that a helpful way to start is finding a single person’s participatory defense campaign and plugging in there. You have the advantage of seeing your work and effort pay of in a single human’s life while learning up-close how the system impacts all of us.

• Talent. Whatever your skills, the movement to close migrant cages can use them. DWN’s Silky Shah has offered a helpful, user-friendly guide for how to find your people who are moving in these spaces and see how you can help. Write letters to folks inside. Make art. Schedule a teach-in. Attend someone’s hearing.

• Treasure. If you have means, support a bail fund. People can’t suffer inside if we bail them out. Here’s one I trust. Here’s another. There are so many more. Find a local bail fund for people caged close to you and help raise money for it.

We don’t yet know what’s going to bring about the abolition of ALL migrant cages, so we can’t yet say how close we are to that moment. We do know, however, what doesn’t work. Take the time to learn about the various ways the system counts on us to help it survive, and resolve not to engage in that sort of advocacy.

Again: What will you do differently because you’ve read the NPR and POGO report?

That is the question that matters most.