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February 2008
Secret Service official defends search for documents
A senior U.S. Secret Service official testified today that he thoroughly searched Director Mark Sullivan’s suite of offices for documents related to the promotion of African American agents.
Those documents are sought in a long-running civil lawsuit alleging that the Secret Service routinely discriminated against black agents by favoring white agents for promotion and creating a “racially hostile” atmosphere where the use of the word “nigger” was used on the job and blacks were tapped for going undercover because it was assumed they “spoke the language of the street.”
Faron Paramore, the special agent in charge of the director’s office at headquarters, said he took a request for documents related to the promotion of agents seriously but that he was unable to recover a single document during his search.
Paramore testified that he personally checked more than 200 files in Sullivan’s office as well as nearly 200 files stored in the deputy director’s office; the desks of two administrative assistants; the storage areas; the office safe and the kitchen in search relevant documents.
“I individually reviewed each document, each piece of paper,” said Paramore under questioning from Assistant U.S. Attorney Benton Peterson.
Paramore said it took him 7 to 8 hours over 3 1/2 days to check each document in the office. In addition, he spent about 2 1/2 hours checking his own files stored in his office and in his home for anything relevant to the case.
Today’s hearing was the ninth hearing held by U.S. Magistrate Judge Deborah A. Robinson to determine whether to sanction the service for what plaintiffs say is a failure to present credible testimony and evidence in the 8-year-old lawsuit filed on behalf of Reginald G. Moore, an Atlanta native who is still with the service.
Robinson has already sanctioned the service three times during the discovery process. Legal experts say that is an unusually high number, especially against a government agency.The American Civil Liberties Union is closely monitoring the case.
The service is appealing all three of those sanctions.
Paramore’s testimony goes to the heart of the government’s defense that it has diligently complied with a Dec. 21 order from Robinson to search for documents relevant to the case.
“Our position is not only did they do a thorough search, but they went beyond what is considered a reasonable search and did follow-up searches,” said Marina Utgoff Braswell, the assistant U.S, attorney leading the defense of the service, speaking during a break.
The plaintiffs, represented by Hogan & Hartson and Relman & Dane for free, argue that the searches were not reasonable.
The service did not adequately search for paper documents and electronic documents related to the promotion of African American agents as the judge ordered more than one year ago, said E. Desmond Hogan, one of the lawyers representing the plaintiffs.
“While Plaintiffs have not yet had the opportunity to complete their cross examination of Agent Paramore, the fact remains that the overwhelming evidence presented in this hearing confirms that defendant has failed to conduct an adequate search for documents that were due to plaintiffs more than a year ago, and that documents relating to a critical issue in this case have been destroyed,” Hogan said. Nearly 60 black agents have said in sworn affidavits filed in the case that they faced discrimination in the service.
Moore said he continues to fight the lawsuit, despite rising to the highest levels of the service since he first filed the case, so that the system will be permanently improved for all agents. No one should have to face the persistent discrimination that African American agents have faced in the service, he said.
The case has had many twists and turns during the discovery process. Last week, Carrie Hunnicutt, a senior inspector with the service, admitted that she destroyed original surveys of high ranking officials describing their search for documents despite a court order to preserve all records.
“I find it almost unbelievable that a law enforcement official with the service for more than 15 years would destroy or alter documents,” said Moore, speaking during a break during the hearing.
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Secret Service inspector changed document
A U.S. Secret Service inspector who admitted destroying documents sought in a federal lawsuit alleging that the service discriminates against African American agents testified today that she altered at least one document.
Inspector Carrie Hunnicutt testified that she added information to a document containing responses from a high-ranking official about the extent that service agents searched for records related to the promotion of black agents.
U.S. Magistrate Judge Deborah A. Robinson ordered the service to search for those documents on Dec. 21st.
Today’s hearing was the 8th hearing held by Robinson (pictured) to determine whether to sanction the service for failing to produce credible testimony and evidence in a case that was originally filed 8 years ago. This would be the fourth sanction issued by Robinson. The service is appealing all three of Robinson’s previous sanctions to the presiding judge on the case U.S. District Judge Richard W. Roberts.
“We have all been surprised by the testimony that original documents have been destroyed by deliberately placing the documents in a burn bag,” Robinson said.
The court and the counsel for Reginald Moore, an Atlanta native and lead plaintiff in the case, were not given the same documents that the service’s counsel had in its possession, Robinson said.
“This issue is taking on increasing importance,” Robinson said.
Marina Utgoff Braswell, an assistant U.S. attorney representing the service, said that she and the rest of her legal team did not know about the destruction of documents until last week’s testimony.
“I am always concerned about documents being destroyed even if they don’t pertain././.” Braswell said.
Robinson interrupted.
“But they do pertain,” Robinson said.
Under questioning by assistant U.S. Attorney Michelle Johnson, Hunnicutt said that she destroyed the documents because she thought they were “non-responsive” to the request to search for records related to promoting African American agents.
Hunnicutt said she stored the information on a computer spread sheet program. She said that she carefully transferred information from the 50 surveys that she ultimately destroyed to new records because she had misnumbered the original survey forms.
“The information was retained,” Hunnicutt said.
But E. Desmond Hogan, one of the lawyers from Hogan & Hartson representing the black agents for free, argued the opposite.
The original information is lost forever, Hogan said. There is no way to idependently verify that what Hunnicutt originally wrote is actually the information she transferred to the new records, he said.
Just six out of the 50 original surveys still exist. Hunnicutt testified that she is not sure why they still exist or why they were placed in a binder containing all of the documents relevant to the search.
Hogan compared one of those six documents to the original and found that Hunnicutt had added information from one of the service offices.
When he asked Hunnicutt about it, she did not immediately reply.
A frustrated Hogan thundered, “You added information, Yes or No?”
Robinson ordered Hunnicutt to answer the question.
Hunnicutt said, “yes.”
“The evidence is crystal clear that there is no way for the court or plaintiffs to ever verify the accuracy of dozens of documents relevant to this hearing and the judge’s order because Inspector Hunnicutt admitted she destroyed the original documents and no copies were retained,” Hogan said.
“Inspector Hunnicutt’s admission that before destroying the original she altered the answer on at least one of the documents that ultimately was provided to the court raises serious concerns about the Secret Service’s motive in destroying these documents,” Hogan said.
But the service disputes the relevancy of those documents.
The service’s legal team presented testimony today from two senior agents today who testified that they searched for documents requested by Robinson. The testimony was intended to show that the service has conducted an in-depth effort to comply with Robinson’s order.
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Secret Service Inspector admits destroying documents
A senior U.S. Secret Service inspector admitted today that she destroyed original evidence sought in a long-standing lawsuit alleging that the service routinely discriminates against African American agents.
The team of assistant U.S. attorneys representing the service told U.S. Magistrate Judge Deborah A. Robinson today that they did not know that the inspector had placed the documents in a “burn bag” for destruction just two days before she was scheduled to testify in the case.
Inspector Carrie Hunnicutt testified that she questioned more than 150 senior service officials under an order from Robinson about their search for all paper documents related to the promotion of black agents in a civil lawsuit filed in federal court eight years ago.
Nearly 60 African Americans allege in sworn statements that they were leapfrogged by white agents who scored lower on promotional exams and forced to endure the use of the word “nigger” on the job. They are seeking certification for a class-action lawsuit, but so far have not made it past the discovery stage.
Hunnicutt testified that she destroyed surveys from 50 high ranking officials; a statistical report; fax sheets and documents that showed who was contacted during the service’s search for paper documents in the case.
Hunnicutt said she placed the documents in a “burn bag” on Jan. 30, 2008, just two days before she was scheduled to testify about the the service’s efforts to comply with Robinson’s Dec. 21st court order to hunt for documents.
Robinson told the lawyers that she was “shocked” that a Secret Service agent would destroy documents. The Secret Service’s own counsel has ordered the agency’s employees to retain all documents relevant to the case.
Assistant U.S. Attorney Marina Utgoff Braswell told Robinson that she and the rest of the legal team did not learn about the extent of the destruction until Hunnicutt testified today.
“We are all learning for the first time what happened here,” Braswell said. Hunnicutt’s supervisor told the government lawyers on Tuesday that there were some “scraps of paper” that were destroyed but he did not elude to the destruction of the original surveys.
Braswell said her hands were tied to find out more information about the destroyed documents in advance of the hearing because of a court order forbidding Hunnicutt from talking to anyone about the case.
“We have certainly not been dilatory,” Braswell said.
The team of lawyers from Hogan & Hartson and Relman & Dane representing the plaintiffs in the lawsuit for free said the burning of the documents is an “outrageous act” and in defiance of the service’s own order to preserve all documents in the case.
“I am shocked and disappointed in the U.S. Secret Service and their inability to retain and produce evidence relevant to our claims,” said E. Desmond Hogan, a lawyer with Hogan & Hartson in Washington. “This is representative of a pattern of behavior in this case. It shows how they disrespect and mistreat the plaintiffs in the case.”
Under questioning by assistant U.S. attorney Michelle Johnson, Hunnicutt said she destroyed the documents because she wanted the most accurate ones to be sent to court.
Hunnicutt said she noticed that some of the surveys, about 50, were misnumbered in January. So she “transferred” the correct information to the newly numbered surveys.
But during the cross-examination, Hogan argued that by destroying the original documents, the court would have no way to independently verify her work as accurate.
Robinson had to intervene several times during the questioning to instruct Hunnicutt to answer Hogan’s question. Nearly every single objection was overruled by Robinson in favor of the plaintiffs.
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Wikileaks in trouble for leaking
A California judge has ordered the popular whistle-blower website Wikileaks.org to shut down after it posted hundreds of internal documents alleging that a Swiss bank engaged in questionable off-shore activities in the Cayman Islands.
The documents, posted by a whistleblower with the Swiss banking group Julius Baer & Co., allege that the bank was involved with money laundering and tax evasion schemes.
U.S. District Judge Jeffrey S. White ruled in favor of Julius Baer on Friday, saying the company would face “immediate harm” in the absence of such “injunctive relief.”
White ordered Dynadot, a California-based company that registered the Wikileaks site, to “immediately lock the wikileaks.org domain name to prevent transfer of the domain name to a different domain registrar, and shall immediately disable the wikileaks.org domain name and account to prevent access to and any changes from being made to the domain name and account information, until further order of this Court.”
Wikileaks, founded two years ago as a central clearing house for whistleblowers, claimed in an interview with the BBC that the order was “unconstitutional” and said that the site had been “forcibly censored.”
Julius Baer asked for the documents to be removed out of concern that it could impact a separate legal case in Switzerland.
Here’s some more from the ruling:
Dynadot shall immediately disable the wikileaks.org domain name and account such that the optional privacy who-is service for the domain name and account remains turned off, until further order of this Court.
Dynadot shall preserve a true and correct copy of both current and any and all prior or previous administrative and account records and data for the wikileaks.org domain name and account.
Dynadot shall immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.
Dynadot shall immediately produce both current and any all prior or previous administrative and account records and data for the wikileaks.org domain name and account, including, but not limited to, all data for the registrant; billing, technical and administrative contacts; all account and payment records and associated data; and IP addresses and associated data used by any person, other than Dynadot, who accessed the account for the domain name, to the extent such information is maintained by Dynadot.
Plaintiffs shall immediately upon entry of this order file a dismissal with prejudice in favor of Dynadot. Notwithstanding the foregoing, plaintiffs and Dynadot stipulate and agree that the Court shall retain jurisdiction to enforce this order.
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House Republicans urge passage of Senate FISA bill
As House Democratic leaders huddle over how to prevent dilution of their bill overhauling electronic surveillance rules, leading Republicans are urging that the chamber approve the Senate bill that passed last night.
Rep. Lamar Smith, R-Texas, the ranking member of the House Judiciary Committee, echoed President Bush today in saying the time is now to upgrade the 1978 Foreign Intelligence Surveillance Act.
No more extensions. No more hearings.
House Democratic leaders lost an attempt today to win a 21-day extension of a temporary measure passed last August. Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, pressed lawmakers to support the extension, saying more time was needed before officially sanctioning the president’s warrantless spy program.
The final vote was 191 to 229 against extending the program by 21 days.
The Senate bill is opposed by House Speaker Nancy Pelosi, D-Calif., because it contains a provision that would grant telephone companies legal cover for participating in the president’s secret terrorist surveillance program without a court warrant as is required by law.
There are some 40 lawsuits around the country alleging that the telephone companies violated the civil liberties of customers and the law by cooperating with the National Security Agency to eavesdrop on telephone calls and monitor e-mails of suspected terrorists and people living in America following the Sept. 11, 2001, terrorist attacks.
The telcom industry and the Bush adminsitration say the companies participated with the approval of attorney general and the authority of the president during a time of need.
Civil liberties groups oppose granting telecoms such immunity because it would mean the end of the lawsuits, lawsuits they hope will shed light on the extent that the NSA eavesdropped on Americans without a court warrant.
The American Civil Liberties Union urged lawmakers to simply let the temporary law expire on Saturday and not let “the phone companies off the hook for law breaking.”
“The House should stand up to the bullying from the president and reject the administration’s lies and fear mongering,” said Caroline Fredrickson, director of the ACLU’s Washington Legislative Office. “This administration has abused its power over and over again and it is time for the House to reject any attempts to consider the unconstitutional Senate Intelligence Committee FISA bill.”
If the NSA wants to eavesdrop, then the agency should do what the law dictates: get a warrant from the secret FISA court, a court that has approved almost every single warrant request over its 30-year history, Fredrickson said.
“Terrorism is a threat. But ignoring the Constitution is also a threat,” Fredrickson said. “Liberty is America’s greatest treasure. It is our freedom that makes us a great nation.”
But the Bush administration and telecom lobbyists say the provision is crucial for future assistance.
“Liability protection is critical to securing the private sector’s cooperation with our intelligence efforts,” Bush said today urging swift passage of the Senate bill.
Battle against telecom immunity is not over
Civil liberties groups are already moving past the Senate vote tonight on legislation that would overhaul the nation’s electronic surveillance rules and provide legal cover to telephone companies that participated in a secret terrorist eavesdropping program without a court warrant.
The 68 to 29 vote sends the Senate overhaul of the 1978 Foreign Intelligence Surveillance Act to the negotiating table with House leaders. And that is where groups like the American Civil Liberties Union and the Electronic Frontier Foundation are directing their attention.
There, House and Senate negotiators must hammer out major differences between the two chambers over how best to update the 30-year-old law.
The most controversial difference is granting the telecom industry retroactive immunity from some three dozen lawsuits alleging that the companies participated in President Bush’s terrorist surveillance program without court permission in violation of the law.
The House bill does not provide the telecoms with legal protection from those lawsuits and it demands greater oversight over future electronic surveillance.
“Immunity for telecom giants that secretly assisted in the NSA’s warrantless surveillance undermines the rule of law and the privacy of every American,” said Kevin Bankston, senior counsel at Electronic Frontier Foundation, a digital civil liberties group based in San Francisco.
EFF represents the a group of AT&T customers in a class action lawsuit accusing the telecommunications company of violating their rights by illegally assisting the government in domestic surveillance.
“Congress should let the courts do their job instead of helping the administration and the phone companies avoid accountability for a half decade of illegal domestic spying,” Bankston said.
The ACLU vowed to nix immunity from the final bill.
“This is a sad day for the rule of law,” said Tim Sparapani, senior counsel at the ACLU. “Today, the Senate voted to cover up illegal wiretapping.”
Time is running out. A temporary measure approved last August is set to expire on Friday when Congress recesses for the President’s Day holiday.
“We’ve lost every single battle we had on this bill,” said Sen. Christopher J. Dodd, D-Conn., leading the opposition to telecom immunity. “The question now is can the House do better?”
By a 31 to 67 vote, the Senate rejected an amendment from Dodd that would have stripped the immunity provision from the bill. Republicans voted as a block with 18 Democrats and Sen. Joseph Lieberman, an indepenent from Connecticut, against the amendment.
Dodd warned the battle is not over. If the final bill provides retroactive immunity for the telecoms, Dodd said he would filibuster the bill.
“We have created a precedent here that would suggest that the word of an American president is enough for 16 companies to basically vacuum clean every phone call, every fax, every email./././ without any governor on this at all,” Dodd said. “That was the single largest invasion of privacy in the history of the country. And we have just sanctioned it with retroactive immunity.”
But the Bush administration and the telecom industry argue that the telecommunications companies should not be punished for helping the country with an eavesdropping program sanctioned by the Justice Department and authorized by the president after the Sept. 11, 2001, terrorist attacks.
Leading House Republicans are already working to garner support for the Senate bill, raising the specter of a showdown over immunity.
Rep. Lamar Smith, R-Texas, said the Senate measure is superior to the House bill.
“I hope they have seen the light. I hope that they will take the Senate bill and pass it quickly, turn it around quickly, and continue to protect the American people,” said Smith, ranking member of the House Judiciary Committee. “Why are we making it more difficult to gather intelligence after 9/11 than before 9/11?”
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More testimony in Secret Service lawsuit
More details in the lawsuit alleging that the U.S. Secret Service discriminated against African American agents by creating a “racially hostile atmosphere.”
Carrie Hunnicutt, the Secret Service inspector in charge of searching for all paper documents related to the promotion of black agents, testified today that the service conducted a “good-faith search” of every office to locate paper records sought by plaintiffs.
“I thought this was a good-faith search world-wide of every Secret Service office that pertained to the court ordered request,” said Hunnicutt of the search ordered by U.S. Magistrate Judge Deborah A. Robinson on December 21, 2007. “They searched everywhere.”
But E. Desmond Hogan, a Hogan & Hartson lawyer representing the plaintiffs for free, attempted to poke holes in that assertion.
Hogan asked how the search could be thorough when the head of the Buffalo field office failed to search for “even one piece of paper” according to Hunnicutt’s own questionnaire evaluating the extent to which the service conducted its search.
In another example, Hogan asked how it could be a complete search when some senior officials did not even respond to all of Hunnicutt’s questions about their search.
Robinson held the hearing in an effort to determine whether she should sanction the government a 4th time for failing to produce evidence and credible testimony in the discovery process. Legal experts say it is extremely rare for a judge to sanction the government so many times.
Hunnicutt tried several times to defend the service. At times, she offered a defense of the search without answering the question posed by Hogan.
At one point, Robinson threatened to strike her entire testimony from the court record if she did not start answering the questions posed by Hogan.
Given Hunnicutt’s doctorate degree and senior job with the service, Robinson said she had “no doubt” that Hunnicutt understood Hogan’s questions.
At times, Hunnicutt responded with long periods of silence before answering.
Hogan asked Hunnicutt why she deliberated so long before answering his questions in stark contrast to her speedy response to the lawyers representing the service. At times, he said, she took in excess of a minute to respond.
Hunnicutt said she needed more time to answer Hogan’s questions because she did not think he would allow her to elaborate or explain her answers.
Michelle Johnson, an assistant U.S. Attorney, allowed her to expand on her responses.
Robinson continued the hearing until later this month.
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Cornyn and Leahy oppose Bush cutting FOIA ombudsman
Sens. Patrick Leahy, D-Vt., and John Cornyn, R-Texas, are putting their political power where their mouth is.
Or so to speak.
The “open government duo” as they are known on Capitol Hill, sent Jim Nussle, director of the Office of Management and Budget, a terse letter today expressing their opposition to eliminating funding for an ombudsman at the National Archive and Records Administration to settle Freedom of Information Act disputes.
The position of overseeing the numerous Freedom of Information Act conflicts would be transferred to the Justice Department under President Bush’s spending plan for next year.
“This proposal violates both the explicit text of the OPEN Government Act and its legislative intent,” Leahy and Cornyn wrote.
“We and our fellow lawmakers, supported by the FOIA requestor community, sought to make the FOIA ombudsman independent of the Department of Justice, which represents agencies sued by FOIA requestors,” Leahy and Cornyn wrote.
“A primary reason for this intentional separation was to enhance the office’s independence as well as to avoid real or perceived conflicts of interest,” Leahy and Cornyn wrote.
In other words: they do not want the same agency that defends the government in court to settle FOIA disputes.
Here’s the letter:
February 5, 2008
Hon. Jim Nussle
Director, Office of Management and Budget
725 17th Street, NW Washington, D.C. 20503
Dear Director Nussle:
President Bush recently signed into law our OPEN Government Act of 2007, Public Law 110-175, which made the first significant reforms to the Freedom of Information Act (FOIA) in over a decade. As longtime advocates for greater openness in government, we believe that our legislation will help restore the promise of FOIA.
A key component of our legislation is the creation of the Office of Government Information Services (OGIS). Among other things, OGIS will mediate disputes between agencies and FOIA requestors, review agency compliance with FOIA, and house the newly created FOIA ombudsman.
In its FY2009 budget proposal, the administration proposes transferring the responsibilities of OGIS to the Department of Justice. Budget of the United States Government, Fiscal Year 2009, tit. 5, § 519.
This proposal violates both the explicit text of the OPEN Government Act and its legislative intent. The Act declares that “[t]here is established the Office of Government Information Services within the National Archives and Records Administration.” 5 U.S.C. § 552(h). This placement was intentional. We and our fellow lawmakers, supported by the FOIA requestor community, sought to make the FOIA ombudsman independent of the Department of Justice, which represents agencies sued by FOIA requestors. A primary reason for this intentional separation was to enhance the office’s independence, as well as to avoid real or perceived conflicts of interest. We did not want the same agency to both mediate FOIA disputes and defend against them in court, if litigation ensued. The administration’s proposal alters the essential character of OGIS as an independent, disinterested office serving FOIA requestors.
For these reasons, we strongly oppose the administration’s proposal to transfer the responsibilities of OGIS to the Department of Justice. Instead of moving OGIS, the administration should be working to stand up and adequately fund the office. We hope that you will be responsive to our concerns, and we look forward to working with you to bring this new office into existence for the benefit of the FOIA requestors it was designed to assist.
Sincerely,
______ ______
PATRICK LEAHY JOHN CORNYN United States Senator United States Senator
Bush eliminates FOIA ombudsman
Noticeably absent from President Bush’s 2009 budget is funding for the job of overseeing all Freedom of Information Act disputes.
The ombudsman job at the National Archives and Records Administration was seen as the centerpiece of legislation passed by Congress last year and signed by Bush on Dec. 31 to overhaul the beleaguered law.
The president eliminated the job at the archives in his proposed spending plan and transferred the responsibility to the Justice Department.
After hearing rumors of this for the past two weeks, the open government community responded in full force, saying there is a conflict in interest in having Justice oversee complaints about FOIA responses.
“The Bush administration “repealed” a section of the new law,” said Patrice McDermott, executive director of OpenTheGovernment.org, an umbrella organization of conservative and liberal groups concerned about government secrecy. McDermott said the administration hid its actions deep in the Commerce section of the budget.
“The public should be shocked, as we are, that the president has attempted to use his budget to repeal a provision of a law he just signed,” McDermott said. “The OPEN Government Act creates an ombudsman office for the public in the National Archives and the president is not only ignoring this law, but attempting to re-write a statute-to legislate without Congress. This is an affront to all of us and it is time for Congress to restore the balance of powers.”
The Sunshine in Government Initiative, a coalition of ten media groups dedicated to open government issues, wrote to lawmakers today objecting to the action.
“Asking the Justice Department to perform the responsibilities creates an inherent conflict of interest,” the letter to lawmakers states. “We encourage the Congress to fully fund the Office of Government Information Services within the National Archives. This reflects the plain language of the statute and intent of Congress in passing the OPEN Government Act. The money should follow the law.”
“For the first time, Congress created an independent ombudsman in the federal government to help the public,” said Rick Blum, coordinator of SGI. “Why quit the experiment after only 35 days?”
The ombudsman would be an important advocate for the public to better understand how open government works, resolve disputes and avoid unnecessary lawsuits when seeking documents from our government, Blum said.
Daniel J. Metcalfe, who ran the Justice Department’s Office of Information and Privacy before retiring to run the Collaboration on Government Secrecy at American Univeristy’s Washington College of Law, found the president’s action ironic.
“Ironically, this is so transparent: OMB and Justice seek to avoid complying with this FOIA amendment by instead merely proposing its alteration, and through an appropriations process that of course won’t conclude until near the end of the year, if even by then,” Metcalfe said. “Meanwhile, existing law is flouted, a terrible example is set for FOIA implementation, and ‘the clock is run out’ by this administration. Congress should see through this and not tolerate it.”
Sen. Patrick J. Leahy, D-Vt., who authored the FOIA overhaul with Sen. John Cornyn, R-Texas, vowed to restore funding for the job at the National Archives.
Leahy suspected that the administration would make this move and said so on Jan. 24 on the Senate floor.
“Once again, the White House has shown they intend to act contrary to the intent of Congress,” Leahy said.
“The president has repealed part of the law he signed just over a month ago,” Leahy said. “I will continue to work through the appropriations process to make sure that the National Archives and Records Administration has the necessary resources and funds to comply with the OPEN Government Act.”
Secret Service v. African American agents in discrimination suit
The U.S. Secret Service inspector in charge of complying with a federal judge’s order directing high-ranking officials to search for documents related to the promotion of African American agents testified today that she has never reviewed or even seen the formal legal requests for documents sought by the plaintiffs in a civil lawsuit alleging discrimination.
That means that Inspector Carrie Hunnicutt sent an e-mail on December 26, 2007 to senior Secret Service officials asking them to check their files for documents related to the case without knowing exactly what the plaintiffs wanted.
The e-mail was drafted by Secret Service lawyers, Hunnicutt said. She reviewed it, but that was her only exposure to the list of records sought by the plaintiffs, she said.
The service tasked Hunnicutt with calling 156 Secret Service officials who certified that they did not have any documents in response to her e-mail.
The e-mail was sent in an effort to comply with U.S. Magistrate Judge Deborah A. Robinson’s December 21st motion to compel the service to produce responsive documents sought in discovery.
Robinson held the hearing in an effort to determine whether she should sanction the government a 4th time for failing to produce evidence in the discovery process. Legal experts say it is extremely rare for a judge to sanction the government so many times.
Without seeing Robinson’s order compelling the service to turn over documents or the plaintiffs earlier motions requesting documents, Hunnicutt testified that she called all 156 senior officials to see what they did to comply with the order. She testified that she called the officials from Jan. 4-9, which included a weekend.
Hunnicutt’s testimony is important because it supports the plaintiff’s allegation in court documents that the service has not thoroughly check its electronic and paper records to adequately respond to the plaintiffs requests, argued E. Desmond Hogan, a lawyer representing the plaintiffs for free.
Hogan spent nearly three hours asking Hunnicutt to describe how she conducted her search for records.
At times, Hunnicutt responded with long periods of silence before answering. She asked for questions to be repeated several times before answering.
The time lapses were unusual enough for Robinson to ask Hunnicutt if she has a medical problem that would cause her to be “inattentive” in court.
Hunnicutt, an agent for 17 years, once competed for a job protecting the president sought by Ray Moore, the lead plaintiff in the case. She got the job instead of Moore, despite his seniority in the service.
Hunnicutt said she has no medical problems to cause her to be inattentive. She said she was taking her time in answering the question so that she could provide the court with the most accurate answer possible.
Hunnicutt told the court that she was “concerned” when she was asked by the service lawyers to call the senior officials to see how they accomplished their search because it was a major project to undertake.
The merits of the 8-year-old case have never been heard in large part because there was little action for the first four years before Robinson was assigned to oversee discovery, according to the court records The last four years have been tied up in protracted battles over discovery.
The Secret Service contends that it has diligently responded to requests for discovery, that it has provided over 300,000 documents in response to numerous requests from plaintiffs’ attorneys and has produced numerous current and former employees for depositions over the past eight years.
Last week Arthur Kuhn, a veteran agent, testified that the agency worked around the clock to comply with the judge’s order.
Robinson continued the hearing until Feb. 5.
