ICE, Increase the Real Intelligence Budget!

 

"Planned Activities: Respond to all media, NGO, educational, commercial and individual FOIA requests within the statutory time limits..." From fy 2016 ICE budget

"Don't ask and ye shall not receive."
- FOIA budgeting muse

I was talking with some colleagues today about the well-known problem of Immigrations and Customs Enforcement and other agencies telling requesters and courts that they cannot comply with mandatory Freedom of Information Act  deadlines because of equipment and staffing shortages.  And then the same agency tells Congress in their budget proposals, "Hey, nothing to look at here.  We've got our FOIA operations covered."  

Usually agencies ask Congress for more funds for their programs. What's up with this?  

Of course, ICE's daily mode of breaking the law benefits not one whit from misconduct being revealed.  If ICE had its druthers, I'm guessing it would request $100 billion to run drones to sweep up data on every person on the planet, and its FOIA budget would be "0." 

Congress passed the FOIA in order to deputize citizens to expose agency activities to sunlight necessary for oversight and policy changes.  There have been numerous episodes in which Congressional letters to agencies have gone unanswered but nonprofits and citizens have ferretted out the requested information through their FOIA litigation, especially during the Trump administration.  

The problem with the FOIA budgeting goes to the overarching need for the FOIA in the first place: agency officials make bad decisions, sometimes even ones that are illegal, and they want to keep these secret.

Why would Congress or anyone else think that the very agencies whose top officials are breaking the law would be requesting funding to support a program that effectively reveals their waste, fraud, and unlawful violence?  

A few FOIA lawsuits have been calling out ICE and US Citizenship and Immigration Services on this point. (TRAC's Sue Long at Syracuse University has been a tireless and productive trailblazer.  You can find their cases here and other cases on the incredible FOIA Project case locator.)

A few docs illustrating ICE's budget game can be found in the record of Civil Rights Education and Enforcement Center v. United States Department of Homeland Security et al. 1:18-cv-00302-JLK.  

Here are filings about the budget and ICE's misrepresentations:
Declaration of Catrina Pavlik-Keenan (2018) - She says she has been the director of the ICE FOIA office "since that office was created on December 18, 2006" (1).  (Fwiw, ICE was founded in 2003.) Anyway, she says ICE cannot process the documents as mandated by the law because it lacks the resources.  

Plaintiff Response (2018) - The plaintiffs pull a screenshot from the fy2018 budget and note, correctly, that "the current level of FOIA requests being received by ICE was both predictable and in fact anticipated. Yet the 2018 Budget request makes no mention of any funds needed or requested to address the anticipated increase in the number of FOIA requests" (4).

Plaintiff Motion for Sanctions (2019)  

The fy2018 budget on which CREEC relies does not specify funds expended.  

But other ICE budgets do give us a peek at what's going on.  (DHS budget page, through fy2022.)   

The fy2019 budget has information tied to new House accounting requirements that are requiring ICE to break out expenditures it otherwise does not report in its budget request to Congress.  It looks like of the $6.7 billion Congress appropriated for ICE in 2017, ICE spent just $6.45 million on FOIA operations.  (I agree.  That seems SO low; if anyone has another way of reading page 24 of the pdf, let me know.  The page is reporting figures for programs that going forward will be relabelled, to help budget wonks figure out what's happening when the columns move.)   

 

Otherwise, the FOIA operations are not broken out from the overall "mission support" category, which includes as well fire arm training.

Submitted for

fy 2022 - asks for four more employees/ $782k more for its ongoing FOIA/Privacy Act work.  Does not state amount spent in 2021. (p. 39,pdf).  On the next page, ICE tells Congress to budget $123k less than the previous year, due to one-time ("non-recurring") savings.

fy2021 - The document indicates that in fy2019 mission support included 2,210 total employee and spent  $1,091,898, and that in fy 2020, mission support included  2,210 employees and sent $2,092 $1,271,110.

fy 2020 - "Select Mission Support staff will be dedicated to resolving 86,320 FOIA in FY 2020, a 37% increase from FY 2018" (p. 49 pdf).

fy 2019-  This is the proposed budget that shows enacted budget of $6.45 million for iCE in 2017 (p. 24) and proposed increases to $9.627 million for 2018 and 2019.

fy 2018 -  " As depicted in the graph below,the number of FOIA requests fulfilled in FY 2018 is expected to triple from FY 2014 levels. Higher productivity is attributed to a growing workforce and implementation of new software" (p. 62, pdf).

fy 2017 - pt ii, p. 10. For the section including FOIA officers there are many other requests for increases, but no request to increase funding for FOIA requests: 

An increase of $16.1 million and 4 full-time equivalents (FTE) for the Headquarters (HQ) Managed IT Program to support  critical and long overdue improvements in Identity, Credentials, and Access Management (ICAM), cloud support, and system bandwidth. Funding will support an additional eight personnel (4 FTE) to ensure 24/7/365 availability and to meet
the cybersecurity needs of ICE IT systems, infrastructure, and services. p.10 pdf

fy 2016 - p.1435 Program Change Requests

"Changes ICE requests program changes for the Salaries and Expenses appropriation in the following key areas:
• Increase in new attorney positions…………………………...….….$36.5M (197 FTE)
The request will provide funds for 82 attorney positions requested in the October 2014 Technical Assistance and 282 new attorney positions. OPLA requires additional attorney resources to meet its increasing workload driven by recent increases in the number of Department of Justice (DOJ) immigration judges (IJs) and ongoing southwest border surge operations as well as additional requirements anticipated as a result of an increase in Freedom of Information Act (FOIA) requests and appeals. These additional positions are expected to decrease the average length of stay of detainees by 14 percent.
• Increase in Detention Beds to 34,040 [😕] …….…..………………....$435.392M (0 FTE) To meet operational needs to detain and remove both criminal aliens and recent border entrants, ICE requests an increase in the overall funding for beds to meet operational needs. The proposed increase will fund 31,280 adult beds at an average rate of $123.54 and 2,760 family beds at an average rate of $342.73 from ICE’s discretionary appropriation and fees." 

p. 1438 - "Increase of $482 thousand for annualization of the FY 2015 FOIA enhancement.' 

p. 1441

FY 2016 Planned Activities - "In FY 2016, ICE will"
 ....

One more broken promise...

 ICE did ask for 6 more FOIA employees. Not clear what happened (p. 1583)

 

GEO Making 33% Profit at Tacoma Facility, Possible Violation of Federal Acquisition Regulation - UPDATE: 36.79%!

 

Day 6 of Jury Trial on GEO's Exploitation of Detainee Labor in Tacoma:

Details of Super Profits Released

 

 

 

The first big financial reveal was when GEO's Associate Warden for Finance and administration  testified under oath that the annual profits for GEO at the Tacoma Northwest Detention Facility range between $18 to 20 million. 

The monthly invoice he was testifying about was $4.5 million for housing those waiting for their immigration case outcomes, and additional funds for transportion, for a total of about $5.1 million per month, or  annual profits of 29% to 33%. 

In the afternoon, Chuck Hill, the guy who handles GEO's budgets for the entire Western district explained a Powerpoint he'd produced in 2014.  It  showed GEO's revenues of $53,329,447 and profits of $19,621,970.  

The table Hill created, and plaintiff attorney Andrea Brenneke shared with the jury, showed profits of 36.79% in 2013.  

Hill took issue with the characterization of this number as "profits" but referred to it instead as the "gross operating margin," and pointed out that it did not take into account GEO's expenditures on financing, i.e., the payment to its bond holders. 

Once we deduct this, then GEO's net profits in 2013 were reduced to 19.92%.

The attorney showed that in most recent years GEO, AFTER it paid its lenders, was still making 16% to 19% profits from its contracts for the Tacoma facility.

 

 

 Q and A:

(1)  Can GEO budget in its contract taxpayer money to be spent on interest payments and financing?  

A. No. FAR 31.205-20

"Interest on borrowings (however represented), bond discounts, costs of financing and refinancing capital (net worth plus long-term liabilities), legal and professional fees paid in connection with preparing prospectuses, and costs of preparing and issuing stock rights are unallowable."

(2) Okay, so is it legal GEO able to earn massive profits, and spend from these profits, what Mr. Hill called the "gross margin," on GEO's financing?

A.   No. FAR 15.404-4

"C) For other cost-plus-fixed-fee contracts, the fee shall not exceed 10 percent of the contract’s estimated cost, excluding fee."

GEO's legal strategy defending against the wage claims is to lie.   

UPDATE 7/8/2024: Subsequent testimony indicates that GEO was relying on a portion of the rule that does not limit profits.  The rule itself (15.404-4 "Profit") contradicts Congress's mandate for agencies to adopt protocols to “acquire property and services of the requisite quality and within the time needed at the lowest reasonable cost, utilizing competitive procurement methods to the maximum extent practicable.”  I am writing an article about history of this rule and its contribution to predatory governance and the federal deficit.

 

 

Lie #1  GEO is meeting all their contractual obligations without depending on the detainees to do any work.  GEO's marching in their officials and officers to say that GEO guards are cleaning and doing laundry and the detainees may once in a while pitch in because they feel like it and want to help out with cleaning where they live.  (And working in the kitchen gives them an opportunity to leave their pods.)

Their testimony is contradicted by the plaintiffs themselves, who are telling the jury that they are not working to avoid boredom but earn money.  A former GEO kitchen supervisor from 2009 - 2012 now performing similar duties at a nursing home confirmed their accounts.  So did the pay sheets plaintiffs introduced into evidence.  They showed dozens of workers in the dinner shift, not just a few.    

Lie #2   GEO's attorney in his opening statement said the rate was set in 1979.  Today GEO's Ryan Kimble said he saw the one dollar/day rate in a 1979 Congressional continuing resolution.   This makes it sound as though GEO is just following the payment schedule for the work program that Congress wants ICE to follow and that ICE in turn is obligating GEO to use.

At some point the plaintiff attorneys will point out that the first time the dollar/day rate was set was 1950.  1979 was actually the last time Congress set a rate, and the bill Kimble claimed to have seen clearly states that Congress's appropriation at that rate ended on October 30, 1979. 

To be continued... 

C17-5769-RJB, Nwauzor et al. v. GEO Group, Inc. & C17-5806-RJB, State of WA v. GEO Group, Inc. The Complaint is here.

Northwestern University Doubles Down on Sleazy Athletics Deals

 NU to Promote Guy Charged With Cover-up and Files Motion to Dismiss Trafficking Complaint

A few months ago a former Northwestern University cheerleader sued NU, alleging violations of Title IX and the Trafficking Victims Protection Reauthorization Act (TVPRA).  On April 30, 2021, NU submitted its memorandum on behalf of a motion to dismiss.  

NU's brief is not answering the charges but arguing that Hayden Richardson's complaint is legally deficient, i.e., that even if everything she claimed were factually accurate, NU has violated no laws.  One argument is that the complaint is not sufficiently specific about the mechanisms of inducing payments to NU in exchange for the pimping of its students:

Plaintiff does not allege anything of value was given or received on account of the fans’ alleged inappropriate touching of the cheerleaders. The Complaint is devoid of any allegations that donations were, in fact, exchanged, and Plaintiff does not (and cannot) allege that any other thing of value was given or received as a result of the inappropriate behavior. Rather, Plaintiff alleges she was touched or groped by fans at tailgating events and by patrons at a bar (who may or may not even be affiliated with Northwestern in any way). (Compl. ¶¶ 59, 68, 77–78.) Plaintiff does not assert that Northwestern received an alumni donation or grant, much less that any Defendant received any benefit of any kind, because fans and bar patrons groped Plaintiff.

NU argues further that when Congress passed the TVPRA it had in mind contexts closer to sex slaves than college students' scholarships: 

Congress intended the threat of harm to be serious, involving cases “where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence.” [Citations omitted]

NU in addition cites to case law in which judges have succumbed to the branding of nonprofit universities and afforded these high status institutions deference less likely to be available if places like NU and other members of the National Association of College and University Attorneys pursued these actions on behalf of their true masters: the titans of firms like Abbott Laboratories, Boeing, General Dynamics, General Electric and Halliburton whose past and current officials run NU.

Analysis of parts of NU's Motion to Dismiss
I'm posting about this particular complaint on the States Without Nations blog because as the founding director of the Deportation Research Clinic, I have closely followed class action employment litigation against private prisons that have proceeded under the same law Richardson is using to sue NU. Indeed Clinic research has been credited with initiating the litigation.  So I know that judges apppointed by Republicans and Democrats alike have denied motions to dismiss forced labor claims based on imputations of legislative intent.  

Relying on the letter of the law, federal judges and appellate courts in Colorado, Washington, Georgia, California, and Texas have told GEO and CoreCivic that even if Congress did not specifically envision people detained under immigration laws suing the firms for fraudulently or psychologically coercing them to work, these firms were indeed covered by 18 U.S. Code § 1589 and would need to answer complaints thus charging them. Indeed, writing for the Fifth Circuit Appellate Court, James C. Ho, a Trump appointee, wrote:

Judges are not legislators. Legislators write laws—judges faithfully interpret them. So if a party wishes to have its activities exempted from a statute, it must ask the Legislature to enact such an exemption, not the judiciary.  [Feb. 18, 2021, p. 1; orders from other cases here.]

In other words, even if Congress in 2000 or 2008 when it reauthorized the TVPA did not envision it would be prohibiting a university from forcing students to sexually arouse potential donors for purposes of fundraising, such programs or policies would violate the law.

I'm not going into the weeds of the NU brief, but I do want to flag one especially slimy aspect of NU activities obscured by the NU response: the conflation of its pseudo-investigative Office of Equity activities with a bona fide campus watchdog office. The NU memorandum fails to acknowledge the extent to which NU's investigative activities on and off campus are weaponized operations that are used either to target critics or catch-and-kill complaints highlighting improper or unlawful conduct.  

Insofar as Richardson alleged the latter, she was not claiming NU made a rational choice of a range of investigative procedures, as NU avers in its motion to dismiss.  She claimed something far more sinister:

8. It further became evident to Plaintiff that Northwestern’s commitment to supporting victims was a façade to conceal a much uglier reality – Northwestern was willing to silence, and sacrifice the well-being of, its female athletes in order to keep its donors happy.  Refusing to be silenced, Plaintiff obtained numerous statements from her teammates, all saying the same thing – that they were forced to subject themselves to continuing sexual exploitation, assault and harassment, as encouraged and condoned by Bonnevier. With indisputable evidence, Plaintiff went back to Obering to prove her case and request a formal investigation by the Title IX office. Obering and Defendant Polisky then accused her of fabricating the evidence.
9. Even when presented with this evidence, Defendants continued to shame and discredit Plaintiff and obstruct the commencement of a formal investigation. Once the Title IX office was made aware of the hostile environment created by the University’s exploitative fundraising strategy, it continued the cover up by refusing to undertake a formal investigation as requested by Plaintiff.
10. Instead, the Title IX Office acted in violation of the University’s Title IX policy by opting for an under-the-radar, informal “educational training” for Bonnevier. Clearly any negative publicity about the sexual harassment, assault and exploitation of female cheerleaders would have impacted the University’s fundraising efforts.
11. After Bonnevier’s training, the Athletic Department told Bonnevier that she could not force the cheerleaders to attend tailgates. This had little impact, as the cheerleaders were still required to attend fundraising events, which were the primary source of Plaintiff’s Title IX complaint. In any event, Bonnevier threatened the cheerleaders, telling them that if they did not tailgate they would not eat. Defendants again attempted to make the appearance that they were implementing measures to remedy the situation while knowingly subjecting Plaintiff to ongoing harassment to protect a significant source of donations from alumni.
12. Plaintiff complied and did as she was told for the season, but again asked for help from the Title IX office because the sexual harassment continued. Knowing that they could not undergo another informal education for Bonnevier without upsetting Plaintiff and risking her speaking out on the matter, Defendant DaSilva agreed to commence a formal investigation.
13. However, Defendant DaSilva stripped Plaintiff of her status, rights, and accommodations as a Title IX complainant when DaSilva relegated Plaintiff to witness status. DaSilva gave the appearance that she was going to protect Plaintiff and preserve her anonymity. Not knowing exactly what that entailed, Plaintiff was grateful and agreed. However, when Plaintiff inquired as to the status of the investigation, she was informed that, because she wished to remain anonymous, DaSilva had permanently changed her status to a witness in the matter and she therefore was not entitled to receive information about the investigation or its outcome.
14. As a result of being relegated to witness status, Plaintiff was precluded from knowing the investigative findings or the steps the University was taking to address the matter.  The University was able to keep the investigation under wraps and preserve its false reputation as committed to preventing sexual harassment. Clearly the same commitment continued to be inapplicable to female athletes the University wished to exploit for financial gain.

NU's memorandum on behalf of a motion to dismiss was filed on April 30, 2021.Yesterday, outgoing President Morton Schapiro defended his selection of one of the defendants, Mike Polisky, as the next Athletic Director.  Today, there is a rally to protest this. And also a petition.