NYCLU v. U.S. Department of Justice (Seeking access to Operation Darkening Clouds under FOIA)

This case seeks to compel the U.S. Department of Justice to release information on “Operation Darkening Clouds,” a secret FBI data-mining program that may have targeted more than 130,000 immigrants in the lead up to the Iraq war. The previously undisclosed program was revealed in a U.S. Department of Homeland Security document the FBI released in 2007 in response to a federal Freedom of Information Act 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 Aug. 15, 2007 and rejected an NYCLU administrative appeal in March 2008.

The NYCLU filed a lawsuit in federal court to compel the DOJ to release the public records. 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 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. 

S.D.N.Y., Index No. 08 Civ. 5674 (direct)