crew v. dhs: regarding border fence: 1/5/09 - crew memorandum opposing summary judgement

8/7/2019 CREW v. DHS: Regarding Border Fence: 1/5/09 - CREW Memorandum Opposing Summary Judgement

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )ETHICS IN WASHINGTON, )

)Plaintiff, )

)v. )C.A. No. 08-1046 (JDB)

)

DEPARTMENT OF HOMELAND SECURITY, )

)Defendant. )

)

PLAINTIFFS MEMORANDUM IN OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT IN PART, AND IN SUPPORT OFPLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT IN PART

In this action under the Freedom of Information Act (FOIA), 5 U.S.C. 552,

plaintiff Citizens for Ethics and Responsibility in Washington (CREW) seeks the disclosure

of records concerning the construction of the U.S.-Mexico border fence created and

maintained by defendant Department of Homeland Security (DHS) and its component, U.S.

Customs and Border Protection (CBP). Specifically at issue at this stage of the proceedings

are records concerning published allegations that CBP engaged in improper political

favoritism when it made decisions concerning the location of the border fence and the

property owners who would be adversely impacted by the construction project. The agency

has identified 32 documents as responsive to the relevant portion of CREWs FOIA request,

but has refused to disclose the vast majority of the contents of those records. As we

demonstrate below, the agency has failed to carry its burden of justifying its decision to

withhold this material from disclosure and is thus not entitled to the partial summary

judgment it seeks with respect to the disputed information.

Case 1:08-cv-01046-JDB Document 25 Filed 01/05/2009 Page


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Factual Background

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Congress directed the Executive Branch to build physical barriers at the U.S.-

Mexico border in order to deter illegal immigration. IIRIRA 102(a); Pub. L. No. 104-208, 8

U.S.C. 1103 Note. The first such barrier was to be constructed along the 14 miles of the

international land border of the United States, starting at the Pacific Ocean and extending

eastward in the vicinity of San Diego. Id. 102(b)(1). In October 2006, the IIRIRA was

amended by the Secure Fence Act, which identifies five specific areas where 700 miles of

border fencing is authorized for construction, including portions of the border located in

Texas. Pub. L. No. 109-367 (Oct. 26, 2006).

Decisions concerning the proposed location of the border fence in Texas have been

controversial, and there have been allegations that wealthy and well-connected landowners

have influenced the siting process. On February 18, 2008, an article published inThe Texas

Observerasserted that land owned by Ray L. Hunt, a Dallas billionaire and close friend of

President George W. Bush, will be bypassed by the construction project, amid suspicions of

undue influence. Melissa Del Bosque, Holes in the Wall; Homeland Security Wont Say Why

the Border Wall is Bypassing the Wealthy and Politically Connected, The Texas Observer,

February 18, 2008 (attached hereto as Exhibit A).

By letters to DHS and CPB dated March 17, 2008, CREW requested under the FOIA

certain records concerning the U.S.-Mexico border fence. Specifically, CREW requested:

a) any and all records dating from January 20, 2001 to the present reflectingcommunications concerning Ray L. Hunt, Hunt Consolidated, Inc. and any

properties known to be owned by Ray L. Hunt and/or Hunt Consolidated, Inc.,and the construction of fencing along the border between the U.S. and Mexico;

and



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b) all records discussing or reflecting where fencing should be constructedalong the U.S. border with Mexico.

Defendants Exhibit A (attached to Answer) at 1-2.

1

Upon the agencys failure to respond to CREWs request within the statutory deadline

of 20 working days, 5 U.S.C. 552(a)(6)(A), CREW initiated this action on June 18, 2008.

Subsequent to the filing of CREWs complaint, the parties conferred on July 8, 2008, in order

to narrow the terms of the request in response to defendants assertion there were likely

voluminous records responsive to the request as initially drafted. Answer, 7. The

following revised request language was agreed to by the parties on July 15, 2008:

(1) Any and all records, regardless of format, dating from January 20, 2001 tothe present reflecting communications concerning Ray L. Hunt, HuntConsolidated, Inc., or any properties known to be owned by Ray L. Hunt

and/or Hunt Consolidated, Inc., and the construction of fencing along theborder between the U.S. and Mexico, including, but not limited to, input

sought or received from Mr. Hunt and/or Hunt Consolidated on border fenceconstruction;

(2) Any and all records, regardless of format, concerning deliberations,

standards, and criteria encompassing the decisionmaking process surroundingwhere [Secure Border Initiative] fencing should be constructed along the U.S.

border with Mexico. This request excludes any records relating to fencing doneprior to the inception of the Secure Border Initiative (i.e., pre-existing OBP

fencing), as well as any procurement and contract-related records, with theexception of records referencing the rationale for any changes in SBI-related

fence location.

Id.The parties further agreed to bifurcate the handling of the two parts of CREWs re-

stated request, and CBP made an initial disclosure of material responsive to the first part of

1 In its letters to DHS and CPB, CREW requested expedited processing of its FOIA requests

and asserted the requests meet the criteria for expedited processing under DHSs regulations,6 CFR 5.5(d)(1)(ii), because they pertain to a matter about which there is an urgency to

inform the public about an actual or alleged federal government activity, and the requests aremade by a person primarily engaged in disseminating information. Id. at 2-3. The agency

never responded to CREWs expedition request, and did not complete its processing of theportion of the FOIA request at issue here until five months after CREW initiated this action.



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CREWs FOIA request (the Hunt portion) on September 2, 2008. The agency released

additional material in supplemental responses dated October 10 and November 17, 2008.

Declaration of Mark Hanson (Hanson Decl.), 9. The vast majority of the contents of the

records identified as responsive to the Hunt portion of CREWs request has been withheld by

CBP under FOIA Exemptions 5, 6, and 7(E). Hanson Decl., 9&10;Vaughn Index

(attached thereto). On December 3, 2008, defendant moved for summary judgment in part,

asserting it has located and disclosed all non-exempt material responsive to the Hunt portion

of CREWs request, and has not improperly withheld any responsive records.

Memorandum of Points and Authorities in Support of Defendants Motion for Summary

Judgment in Part (Def. Mem.) at 2.2

ARGUMENT

The Freedom of Information Act is intended to safeguard the right of the American

people to know what their Government is up to. Dept of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 773 (1989). The central purpose of the statute is to

ensure an informed citizenry, vital to the functioning of a democratic society, needed to check

against corruption and to hold the governors accountable to the governed. NLRB v. Robbins

Tire & Rubber Co., 437 U.S. 214, 242 (1978); Maydak v. Dept of Justice, 218 F.3d 760

(D.C. Cir. 2000). As this Court recently noted, Congress enacted FOIA for the purpose of

introducing transparency to government activities. In Def. of Animals v. NIH, 543 F. Supp.

2d 83, 93 (D.D.C. 2008) (citation omitted); see also Judicial Watch, Inc. v. Dept of Justice,

365 F.3d 1108, 1112 (D.C. Cir. 2004) (The Supreme Court has long recognized that

2 CREW does not challenge the adequacy of defendants search for responsive records, nor its

invocation of Exemptions 6 and 7(E) to withhold a relatively small amount of the responsivematerial. As such, CBPs invocation of Exemption 5, which accounts for the vast majority of

the withheld information, is at issue here.



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Congress intent in enacting FOIA was to implement a general philosophy of full agency

disclosure.).

Agency records requested under the FOIA must be disclosed unless they fall squarely

within one of the statutes nine enumerated exemptions. The exemptions must be narrowly

construed, and do not obscure the basic policy that disclosure, not secrecy, is the dominant

objective of the Act. Dept of Air Force v. Rose, 425 U.S. 352, 361 (1976).

In reviewing a motion for summary judgment under the FOIA, the Court must conduct

a de novo review of the record. 5 U.S.C. 552(a)(4)(B). In the FOIA context, de novo

review requires the court to ascertain whether the agency has sustained its burden of

demonstrating that the documents requested . . . are exempt from disclosure under the

FOIA. Assassination Archives & Research Ctr. v. Cent. Intelligence Agency, 334 F.3d 55,

57 (D.C. Cir. 2003) (quoting Summers v. Dept of Justice, 140 F.3d 1077, 1080 (D.C. Cir.

1998)). Under the FOIA, all underlying facts and inferences are analyzed in the light most

favorable to the FOIA requester; as such, summary judgment is only appropriate where an

agency proves it has fully discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp 32,

35 (D.D.C. 1996) (citing Weisberg v. Dept of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983)).

I. CBP Has Failed to Meet The Procedural Requirements

Necessary to Sustain Its Burden Under The FOIA

In Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973), the D.C. Circuit established

the procedural requirements that an agency seeking to avoid disclosure must follow in

order to carry its burden. Vaughn requires that when an agency seeks to withhold

information it must provide a relatively detailed justification, specifically identifying the

reasons why a particular exemption is relevant and correlating those claims with the particular



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part of a withheld document to which they apply. Mead Data Cent., Inc. v. U.S. Dept of the

Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977) (citations omitted).3

In King v. U.S. Dept of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987), the court of

appeals reviewed the caselaw applying Vaughn and emphasized that

[s]pecificity is the defining requirement of the Vaughn index and affidavit;affidavits cannot support summary judgment if they are conclusory, merely

reciting statutory standards, or if they are too vague or sweeping. To acceptan inadequately supported exemption claim would constitute an abandonment

of the trial courts obligation under the FOIA to conduct a de novo review.

(footnotes omitted). See also Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) ([t]he

court has provided repeated instruction on the specificity required of a Vaughn index). As

the court concluded in King, [c]ategorical description of redacted material coupled with

categorical indication of anticipated consequences of disclosure is clearly inadequate. 830

F.2d at 224 (footnote omitted). See alsoCtr. for Medicare Advocacy, Inc. v. Dep't of Health

& Human Serv., 577 F. Supp. 2d 221, 238 (D.D.C. 2008) (Vaughn submission must be

sufficiently detailed so as to permit the FOIA requester and the court to review the

applicability of the claimed FOIA exemptions on a document by document basis).

Here, as we discuss more fully below in the context of CBPs invocation of

Exemption 5, the agency has proffered a classic example of the kind of conclusory

declaration the D.C. Circuit has long rejected. The declaration of Mr. Hanson is wholly

lacking in the requisite specificity and, at best, merely attempts to offer a categorical

indication of anticipated consequences of disclosure. Thus, for instance, Mr. Hansons

attempt to justify the agencys invocation of Exemption 5, which accounts for the vast

3 The Vaughn requirements are typically satisfied through an agencys submission of an

affidavit describing the basis for its withholdings, and providing justifications for redactions,

accompanied by an index listing responsive records and indicating the precise redactionsmade to the records. We refer to the affidavit and index collectively herein as a Vaughn

submission.



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majority of the withheld material, consists almost entirely of a discussion of [t]he general

purpose of this privilege, which appears to reflect his understanding of the governing

caselaw. Hanson Decl., 12. Mr. Hansons only reference to thespecific information at

issue here is as follows:

In this case, Exemption (b)(5) has been applied in order to protectchains of e-mail messages that detail the internal deliberations of CBP

personnel that would reveal both the deliberative-thought process of CBPindividuals and the overall decision-making process of CBP as an agency.

These records reflect internal agency deliberations about how to

properly respond to allegations raised in the media about supposedimproprieties resulting from action taken by CBP. These messages reflect

the normal back-and-forth that precedes an agency decision, in this case the

agency response to allegations of improper preferential treatment beingafforded to Ray L. Hunt.

Exemption (b)(5) was also applied to draft documents that reflect theagencys deliberative process. The very nature of a draft, and the process by

which a draft becomes a final document, can constitute a deliberative processwarranting protection under Exemption (b)(5). Release of draft documents

would reveal deliberations of what should, and should not, have been includedin the final version of the document.

Id., 13-15.

Similarly, the agencys proffered Vaughn Index repeatedly states, without any further

elaboration, variations of the following formulation: Information that illustrates the

deliberative process within CBP is redacted pursuant to 5 U.S.C. 552(b)(5) because [the]

information contains deliberations on how to respond to allegations raised in the media. See,

e.g., Vaughn Index (attached to Hanson Decl.) entries for Documents 1, 10-24, 28. These

categorical and conclusory assertions are the kind of representations long rejected by the

courts. The inadequacy of CBPsVaughn submission is apparent, and that shortcoming

standing alone compels the Court to find that the agency has failed to carry its burden. See,

e.g., Defenders of Wildlife v. U.S. Dept of Agric., 311 F. Supp. 2d 44 (D.D.C. 2004)



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(summary judgment denied where agency declarations are inadequate because they do not

afford the plaintiffs a meaningful opportunity to contest, and the district court an adequate

foundation to review, the soundness of the withholding.).

II. CBP Has Not Met Its Burden of Showing The RecordsAre Exempt From Disclosure Under Exemption 5

The utter inadequacy of CBPs purported Vaughn submission becomes all the more

apparent when the agencys vague representations are measured against the specific

requirements of Exemption 5. The agency invokes the exemption on three distinct grounds:

1) deliberative process privilege, premised on the argument that withheld material reveals

deliberations on how to respond to allegations raised in the media (Documents 1, 10-24, 28

and Issue Paper_2-21-08 Newspaper Article); 2) deliberative process privilege, premised on

the argument that the document is a draft that reflects internal discussions and is not in final

form (Document 9); and 3) material redacted because it contains confidential communi-

cations between attorney and client (Document 28). As we explain below, CBP has failed to

establish the propriety of its exemption claims.

A. The Records Are Not Properly Withheld

Under The Deliberative Process Privilege

In conducting a de novo review and deciding whether a document should be protected

under the deliberative process privilege, courts look to whether the document is

predecisional whether it was generated before the adoption of an agency policy and

whether the document is deliberative whether it reflects the give-and-take of the

consultative process. Natl Sec. Archive Fund, Inc. v. CIA, 402 F. Supp. 2d 211, 217

(D.D.C. 2005) (quoting Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 866 (D.C.

Cir. 1980)) (internal quotation marks omitted). To establish that a document is predecisional,

the agency must establish what deliberative process is involved, and the role . . . that the



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documents at issue played in that process. Id. (emphasis added; citation omitted). See also

Formaldehyde Inst. v. Dept of Health & Human Serv., 889 F.2d 1118, 1123 (D.C. Cir. 1989)

(the pertinent element is the role, if any, that the document plays in the process of agency

deliberations) (citation and internal quotation marks omitted); Senate of Puerto Rico ex rel.

Judiciary Comm. v. U.S. Dept of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (the

deliberative process privilege is so dependent upon the individual document and the role it

plays in the administrative process) (citation omitted). As this Court has explained, because

the applicability of the deliberative process privilege is dependent on the content of each

document and the role it plays in the decisionmaking process, an agencys affidavit describing

the withheld documents must be specific enough so that the elements of the privilege can be

identified. Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252, 257 (D.D.C. 2004)

(citations omitted); see also id. at 259 ([t]he agency must identify the role of a contested

document in a specific deliberative process) (citation omitted).4

Here, CBP has identified, in the most general terms, the process involved

deliberations on how to respond to allegations raised in the media but has not even

attempted to identify the role the disputed documents played in that process. That failure

4

The D.C. Circuit has observed that

the word deliberative as used in the law of Exemption 5 is considerably

narrower than the colloquial meaning; as a consequence, the deliberative andpredecisional requirements tend to merge. Both terms have come to apply

only to documents that contribute to an ongoing deliberative process within anagency. . . . InSenate of Puerto Rico, we told the agency that it must

establish what deliberative process is involved, and the role played by thedocuments in issue in the course of that process to fulfill the deliberative

requirement, but we were quoting a portion of the Coastal States opiniondiscussing the predecisionallabel.

Access Reports v. Dept of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (emphasis in

original; citation omitted).



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is particularly significant given the nature of the disputed material the agencys response to

news media allegations of improper conduct. It is a fundamental tenet of Exemption 5

caselaw that even if [a] document is predecisional at the time it is prepared, it can lose that

status if it is adopted, formally or informally, as the agency position on an issue or is used by

the agency in its dealings with the public. Coastal States, 617 F.2d at 866; see also Tax

Analysts v. Internal Revenue Serv., 483 F. Supp. 2d 8, 13 (D.D.C. 2007). Significantly, CBP

identifies several of the withheld documents as talking points. Vaughn Index, Documents

1, 9, 22 and 24. As this Court recently held, the likelihood that withheld materials have

been relied upon or adopted as official positions after their preparation . . . is particularly high

in the case of talking points . . . . Elec. Privacy Info. Ctr. v. Dept of Justice, 511 F. Supp.

2d 56, 71 (D.D.C. 2007). See also N.Y. Times Co. v. U.S. Dept of Defense, 499 F. Supp. 2d

501, 514-515 (S.D.N.Y. 2007) (talking points and the formulation of responses to possible

questions prepared to aid in briefing officials and preparing them to answer questions, and

for the Attorney General so that he can be prepared to answer inquiries from the press held

not properly withheld under Exemption 5); Judicial Watch, Inc. v. U.S. Dept of Energy, 310

F. Supp. 2d 271, 327 (D.D.C. 2004), affirmed in part and reversed in part on other grounds,

412 F.3d 125 (D.C. Cir. 2005) (documents [that] consist of talking points . . . appear to be

improperly withheld); Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. at 265-266

(draft talking points not properly withheld where agency identifies nothing more specific

about the content of this document, does not specify its place in a particular decisionmaking

context, and does not indicate whether, as a draft, these talking points were actually used in a

communication with the public).

When CBPs vague and generic assertion that the disputed material reflects

deliberations on how to respond to allegations raised in the media is weighed against the



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relevant caselaw, it is apparent that the agency has failed to carry its burden of demonstrating

the information is properly withheld under the deliberative process privilege.5

CPB is not

entitled to judgment based on its media response rationale, which forms the basis for the

withholding of the vast majority of the information at issue.6

The agency seeks to withhold one record because the document is a draft that reflects

internal discussions and is not in final form. Vaughn Index, Document 9 (Draft Talking

Points related to Texas Border Coalition Lawsuit). Again, the agencys failure to provide

plaintiff and the Court with even the most basic information about the document compels a

finding the agency has not met its burden of proof. As this Court has held, the defendants

designation of a document as a draft does not automatically trigger proper withholding

under Exemption 5. Defenders of Wildlife v. U.S. Dept of Agric., 311 F. Supp. 2d 44, 58

(D.D.C. 2004), citing Arthur Andersen & Co. v. Internal Revenue Serv., 679 F.2d 254, 257

(D.C. Cir. 1982). As the D.C. Circuit explained inArthur Andersen,

5 The only authority the agency cites in support of its assertion that it properly withheld

records relating to internal agency discussions about how to respond to allegations of

improper preferential treatment being afforded to Ray L. Hunt is Nielson v. BLM, 252 F.R.D.499 (D. Minn. 2008). Def. Mem. at 16. In that case, a magistrate found, without extensive

analysis, that a single redacted paragraph in which the author recommends actions theBLM should take to clarify to the public the issues raised in a newspaper article was properly

withheld under Exemption 5. 252 F.R.D. at 519. We respectfully submit that this Courtsrelevant authority, cited above, is better-reasoned and more analogous to the facts present

here.6 The agencys failure to provide any meaningful information concerning the withheld

material renders the Court unable to consider various factors that would normally inform itsapplication of Exemption 5. While, as we have shown, the adoption issue is the most

apparent in light of the circumstances present here, other critical questions remainunaddressed. For instance, it is well-established that a document from a subordinate to a

superior official is more likely to be predecisional, Tax Analysts v. Internal Revenue Serv.,294 F.3d 71, 81 (D.C. Cir. 2002), quoting Coastal States, 617 F.2d at 868, but CBP has failed

to identify the authors and recipients of the withheld records.



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B. One Record Is Improperly Withheld In Part

Under The Attorney/Client Privilege

CBP has withheld one record (Document 28) in part based upon a claim that it

include[s] a reference to a confidential attorney-client communication relating to the

agencys response [to the media allegations of political favoritism]. Def. Mem. at 16-17.

Once again, the agencys attempt to withhold this material is unsupported by the requisite

showing. In fact, Mr. Hanson does not even address the basis for this privilege claim in his

declaration; it is merely mentioned in defendants brief and noted in its Vaughn Index

(Information is redacted . . . because it contains confidential communications between

attorney and client.). Such a meager showing is clearly inadequate; as this Court has noted,

an agency must identif[y] the source and recipient of [such] communications, because that

information is critical to the Courts assessment of whether the communications are between

an attorney and a client. Ctr. for Medicare Advocacy, 577 F. Supp. 2d at 238. CBPs

assertion of attorney/client privilege cannot be sustained.

III. CBP Has Failed to Comply With The FOIAs Segregability Requirement

The FOIA requires that [a]ny reasonably segregable portion of a record shall be

provided . . . after deletion of the portions which are exempt. 5 U.S.C. 552(b). The D.C.

Circuit has made clear [t]he segregability requirement applies to all documents and all

exemptions in the FOIA. Ctr. for Auto Safety v. EPA, 731 F.2d 16, 21 (D.C. Cir. 1984); see

also Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992). This comports with the policy

of disclosure and prevents the withholding of entire documents, see Billington v. U.S. Dept of

Justice, 233 F.3d 581, 586 (D.C. Cir. 2000), unless the agency can demonstrate that the non-

exempt portions of a document are inextricably intertwined with exempt portions. Trans-

Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027 (D.C. Cir. 1999)



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(quoting Mead Data Cent., Inc. v. U.S. Dept of the Air Force, 566 F.2d 242, 260 (D.C. Cir.

1976)).

So important is the segregability requirement to FOIAs broad disclosure mandate that

trial courts have an affirmative duty to consider the issue of segregability sua sponte. Trans-

Pacific Policing Agreement, 177 F.3d at 1028; see also Billington, 233 F.3d at 586. In fact,

[i]t is error for a district court to simply approve the withholding of an entire document

without entering a finding on segregability, or the lack thereof. Schiller, 964 F.2d at 1210

(citations and internal quotation marks omitted); see also Billington, 233 F.3d at 586.

In this case, the agency has not conducted any segregation analysis. Instead,

defendants brief invites the Court simply to assume all reasonably segregable non-exempt

material has been released. Def. Mem. at 25 (citations omitted). But Mr. Hanson the

agencys declarant does not address the question of segregability anywhere in his

declaration. Such a glaring omission is particularly significant in a case such as this one

where, as we have noted, a substantial amount of the withheld material appears to be purely

factual and thus not properly subject to withholding under Exemption 5. CBPs failure to

address the segregability of non-exempt material precludes entry of judgment in the agencys

favor.

CONCLUSION

As we have shown, CBP has improperly withheld virtually all of the information

responsive to the Hunt portion of CREWs FOIA request, relying upon the vague assertion

that disclosure of the material would reveal the agencys deliberations on how to respond to

published allegations of political favoritism. Under that sweeping rationale, the agency

appears to have withheld a substantial amount of factual material precisely the kind of

information needed to check against corruption and to hold the governors accountable to the



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governed. Robbins Tire & Rubber Co., 437 U.S. at 242. Because the agency has so clearly

failed to meet its burden of justifying its actions, the Court should deny defendants motion

for summary judgment in part, and grant plaintiffs cross-motion for summary judgment in

part.

Respectfully submitted,

/s/ David L. SobelDAVID L. SOBEL, D.C. Bar No. 360418

1875 Connecticut Avenue, N.W.

Suite 650Washington, DC 20009(202) 246-6180

ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584Citizens for Responsibility and

Ethics in Washington1400 Eye Street, N.W., Suite 450

Washington, D.C. 20005(202) 408-5565

Counsel for Plaintiff



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EXHIBIT A

Citizens for Responsibility and Ethics in Washington v. Dept of Homeland Security,

C.A. No. 08-1046 (JDB)

Plaintiffs Cross-Motion for Summary Judgment in Part

Case 1:08-cv-01046-JDB Document 25-2 Filed 01/05/2009 Pa


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6/10/08 3:oles in the Wall by Melissa del Bosque - The Texas Observer

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Holes in the Wall

HOMELAND SECURITY WONT SAY WHY THE BORDER WALL IS BYPASSING

THE WEALTHY AND POLITICALLY CONNECTED.

Melissa del Bosque | February 22, 2008 | Features

This article has been updated. Last update: February 22, 2008.

As the U.S. Department of Homeland Security marches down the Texas border servingcondemnation lawsuits to frightened landowners, Brownsville resident Eloisa Tamez, 72, has on

simple question. She would like to know why her land is being targeted for destruction by aborder wall, while a nearby golf course and resort remain untouched.

Tamez, a nursing director at the University of Texas at Brownsville, is one of the last of theSpanish land grant heirs in Cameron County. Her ancestors once owned 12,000 acres. In the1930s, the federal government took more than half of her inherited land, without paying a cent, tbuild flood levees.

Now Homeland Security wants to put an 18-foot steel and concrete wall through what remains.

https://www.texasobserver.org/subscribe_refer_friend.php?ref=articlehttps://www.texasobserver.org/donate.php?ref=articlehttp://www.texasobserver.org/web_features/border_interviews/index.phphttp://www.texasobserver.org/toc.php?iid=266https://www.texasobserver.org/donate.php?ref=articlehttps://www.texasobserver.org/subscribe_refer_friend.php?ref=articlehttp://www.texasobserver.org/web_features/border_interviews/index.phphttp://www.texasobserver.org/article.php?aid=2688


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green golf course, a Winter Texan from Canada enjoys the mild, South Texas winter and thelandscaped ponds, where white egrets pause to contemplate golf carts whizzing past. The womawho declines to give her name, recounts that illegal immigrants had crossed the golf course oncewhile she was teeing off. They were promptly detained by Border Patrol agents, she says, addingthat agents often park their SUVs at the edge of the golf course.

River Bend Resort is owned by John Allburg, who incorporated the business in 1983 as River

Bend Resort, Inc. Allburg refused to comment for this article. A scan of the Federal ElectionCommission and Texas Ethics Commission databases did not find any political contributionslinked to Allburg.

Just 69 miles north, Daniel Garza, 76, faces a similar situation with a neighbor who has politicalconnections that reach the White House. In the small town of Granjeno, population 313, Garza



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points to a field across the street where a segment of the proposed 18-foot high border wallwould abruptly end after passing through his brick home and a small, yellow house he gave hisson. All that land over there is owned by the Hunts, he says, waving a hand toward the horizoThe wall doesnt go there.

In this area everyone knows the Hunts. Dallas billionaire Ray L. Hunt and his relatives are one othe wealthiest oil and gas dynasties in the world. Hunt, a close friend of President George W.

Bush, recently donated $35 million to Southern Methodist University to help build Bushspresidential library. In 2001, Bush made him a member of the Foreign Intelligence AdvisoryBoard, where Hunt received a security clearance and access to classified intelligence.

Over the years, Hunt has transformed his 6,000-acre property, called the Sharyland Plantation,from acres of onions and vegetables into swathes of exclusive, gated communities where housessell from $650,000 to $1 million and residents enjoy golf courses, elementary schools, and asports park. The plantation contains an 1,800-acre business park and Sharyland Utilities, run byHunts son Hunter, which delivers electricity to plantation residents and Mexican factories.

The developments Web site touts its proximity to the international border and the new

Anzalduas International Bridge now under construction, built on land Hunt donated. Hunt hasalso formed Hunt Mexico with a wealthy Mexican business partner to develop both sides of theborder into a lucrative trade corridor the size of Manhattan.

Jeanne Phillips, a spokesperson for Hunt Consolidated Inc., says that since the company isprivate, it doesnt have to identify the Mexican partner. Phillips says, however, that no one fromthe company has been directly involved in siting the fence. We, like other citizens in the Valleyhave waited for the federal government to designate the location of the wall, she says.

Garza stands in front of his modest brick home, which he built for his retirement after 50 years aa migrant farmworker. For the past five months, he has stayed awake nights trying to find a way

to stop the gears of bureaucracy from grinding over his home.

A February 8 announcement by Homeland Security Secretary Michael Chertoff said the agencywould settle for building the fence atop the levee behind Garzas house instead of through it,which has given Garza some hope. Like Tamez, he wonders why his home and small town weretargeted by Homeland Security in the first place.

I dont see why they have to destroy my home, my land, and let the wall end there. He pointsacross the street to Hunts land. How will that stop illegal immigration?

Most border residents couldnt believe the fence would ever be built through their homes and

communities. They expected it to run along the banks of the Rio Grande, not north of the floodleveesin some cases like Tamezs, as far as a mile north of the river. So it came as a shock lassummer when residents were approached by uniformed Border Patrol agents. They asked peopleto sign waivers allowing Homeland Security to survey their properties for construction of thewall. When they declined, Homeland Security filed condemnation suits.

In time, local landowners realized that the fences location had everything to do with politics anprivate profit, and nothing to do with stopping illegal immigration.



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In 2006, Congress passed the Secure Fence Act, authored by Republican Congressman Peter Kinfrom New York. The legislation mandated that 700 miles of double-fencing be built along thesouthern border from California to Texas. The bill detailed where the fencing, or, as many peoplalong the border call it, the wall, would be built. After a year of inflamed rhetoric about theplague of illegal immigration and Congresss failure to pass comprehensive immigration reformthe bill passed with overwhelming support from Republicans and a few Democrats. All the Texaborder members of the U.S. House of Representatives, except San Antonio Republican Henry

Bonilla, voted against it. Texas Sens. Kay Bailey Hutchison and John Cornyn voted for the bill.

On August 10, 2007, Chertoff announced his agency would scale back the initial 700 miles offencing to 370 miles, to be built in segments across the southern border. Chertoff cited budgetshortages and technological difficulties as justifications for not complying with the bill.

How did his agency decide where to build the segments? Chad Foster, the mayor of Eagle Pass,says he thought it was a simple enough question and that the answer would be based on data andfacts. Foster chairs the Texas Border Coalition. TBC, as Foster calls it, is a group of bordermayors and business leaders who have repeatedly traveled to Washington for the past 18 monthto try to get federal officials to listen to them.

Foster says he has never received any logical answers from Homeland Security as to why certainareas in his city had been targeted for fencing over other areas. I puzzled a while over why thefence would bypass the industrial park and go through the city park, he says.

Despite terse meetings with Chertoff, Foster and other coalition members say the conversationhas been one-sided.

I think we have a government within a government, Foster says. [This is] a tremendousbureaucracyDHS is just a monster.

The Observer called Homeland Security in Washington to find out how it had decided where tobuild the fence. The voice mail system sputtered through a dizzying array of acronyms: DOJ,USACE, CBP, and USCIS. On the second call a media spokesperson with a weary voice directequeries to Michael Friel, the fence spokesman for Customs and Border Protection. Six calls andtwo e-mails later, Friel responded with a curt e-mail: Got your message. Working onanswers it said. Days passed, and Friels answers never came.

Since Homeland Security wasnt providing answers, perhaps Congress would. Phoneconversations with congressional offices ranged from but they arent even building a wall to dont know. Thats a good question. At the sixth congressional office contacted, a GOP stafferwho asked not to be identified, but who is familiar with the fence, says the fencing locationsstemmed from statistics showing high apprehension and narcotic seizure rates. This seemsquestionable, since maps released by the U.S. Army Corps of Engineers showed the wall goingthrough such properties as the University of Texas at Brownsvillehardly a hotbed for drugsmugglers and immigrant trafficking.

Questioned more about where the data came from, the staffer said she would enquire further. Thnext day she called back. The border fence is being handled by Greg Giddens at the SecureBorder Initiative Office within the U.S. Customs and Border Protection office, she said.



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Giddens is executive director of the SBI, as it is called, which is in charge of SBInet, aconsortium of private contractors led by Boeing Co. The group received a multibillion dollarcontract in 2006 to secure the northern and southern borders with a network of vehicle barriers,fencing, and surveillance systems. Companies Boeing chose to secure the southern border fromterrorists include DRS Technologies Inc., Kollsman Inc., L-3 Communications Inc., PerotSystems Corp., and a unit of Unisys Corp.

A February 2007 audit by the U.S. Government Accountability Office cited Homeland Securityand the SBInet project for poor fiscal oversight and a lack of demonstrable objectives. The GAOaudit team recommended that Homeland Security place a spending limit on the Boeing contractfor SBInet since the company had been awarded an indefinite delivery/indefinite quantitycontract for 3 years with three 1-year options.

The agency rejected the auditors recommendation, saying 6,000 miles of border is limitationenough.

In a February 2007 hearing, Congressman Henry Waxman, a California Democrat and thechairman of the Oversight and Government Reform Committee, had more scathing remarks forGiddens and the SBInet project. As of December, the Department of Homeland Security hadhired a staff of 98 to oversee the new SBInet contract. This may seem like progress until you askwho these overseers are. More than half are private contractors. Some of these private contractoreven work for companies that are business partners of Boeing, the company they are supposed tobe overseeing. And from what we are now learning from the department, this may be just the tipof the iceberg.

Waxman said of SBInet that virtually every detail is being outsourced from the government toprivate contractors. The government is relying on private contractors to design the programs,build them, and even conduct oversight over them.

A phone call to Giddens at SBI is referred to Loren Flossman, whos in charge of tacticalinfrastructure for the office. Flossman says all data regarding the placement of the fence isclassified because you dont want to tell the very people youre trying to keep from comingacross the methodology used to deter them.

Flossman also calls the University of Texas at Brownsville campus a problem area for illegalimmigration. I wouldnt assume that these are folks that arent intelligent enough that if theydress a certain way, theyre gonna fit in, he says.

Chief John Cardoza, head of the UT-Brownsville police, says the Border Patrol would have to

advise his police force of any immigrant smuggling or narcotic seizures that happen on campus.If its happening on my campus, Im not being told about it, he says. Cardoza says he has nevcome across illegal immigrants dressed as students.

Flossman goes on to say that Boeing isnt building the fence, but is providing steel for it. EricMazzacone, a spokesman for Boeing, refers the Observer to Michael Friel at Customs andBorder Protection, and intercedes to get him on the phone. Friel confirms that Boeing has justfinished building a 30-mile stretch of fence in Arizona, but insists other questions be submitted



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in writing.

Boeing, a multibillion dollar aero-defense company, is the second-largest defense contractor inthe nation. The company has powerful board members, such as William M. Daley, former U.S.secretary of commerce; retired Gen. James L. Jones, former supreme allied commander inEurope; and Kenneth M. Duberstein, a former White House chief of staff. The corporation is alsone of the biggest political contributors in Washington, giving more than $9 million to

Democratic and Republican members of Congress in the last decade. In 2006, the year the SecurFence Act was passed, Boeing gave more than $1.4 million to Democrats and Republicans,according to the Center for Responsive Politics.

A majority of this money has gone to legislators such as Congressman Duncan Hunter, theCalifornia Republican who championed the Secure Fence Act. In 2006, Hunter received at least$10,000 from Boeing and more than $93,000 from defense companies bidding for the SBInetcontract, according to the center. During his failed bid this year for the White House, Huntermade illegal immigration and building a border fence the major themes of his campaign.

In early February 2008, Chertoff asked Congress for $12 billion for border security. He included

$775 million for the SBInet program, despite the fact that congressional leaders still cant getstraight answers from Homeland Security about the program. As recently as January 31, SenateHomeland Security and Governmental Affairs Committee members sent a letter to Chertoffasking for greater clarity on [the Customs and Border Protection offices] operational objectivefor SBInet and the projected milestones and anticipated costs for the project. They have yet toreceive a response.

Boeing continues to hire companies for the SBInet project. And the congressional districts ofbackers of the border fence continue to benefit. A recent Long Island Business News articletrumpeted the success of Telephonics Corp., a local business, in Congressman Kingscongressional district that won a $14.5 million bid to provide a mobile surveillance system unde

SBInet to protect the southern border.

While Garza and Tamez wait for answers, they say they are being asked to sacrifice somethingthat cant be replaced by money. They are giving up their land, their homes, their heritage, andthe few remaining acres left to them that they hoped to pass on to their children andgrandchildren.

I am an old man. I have colon cancer, and I am 76 years old, Garza says, resting against a treein front of his home. All I do is worry about whether they will take my home. My wife keepsasking me, What are we going to do?

Besides these personal tragedies, Eagle Pass Mayor Foster says there is another tragedy in storefor the American taxpayer. A 2006 congressional report estimates the cost of maintaining andbuilding the fence could be as much as $49 billion over its expected 25-year life span.

They are just going to push this problem on the next administration, and nobody is going to talabout immigration reform, and thats the illness, Foster says. The wall is a Band-Aid on theproblem. And to blow $49 billion and not walk away with a secure borderthats a travesty.



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25/27

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON, ))Plaintiff, )

)v. )C.A. No. 08-1046 (JDB)

)DEPARTMENT OF HOMELAND SECURITY, )

)Defendant. )

)

PLAINTIFFS RESPONSE TO DEFENDANTS STATEMENT OF MATERIALFACTS NOT IN DISPUTE, AND PLAINTIFFS STATEMENT OF MATERIAL

FACTS NOT IN DISPUTE

Pursuant to Local Civil Rules 7(h) and 56.1, plaintiff respectfully submits this

response to defendants statement of material facts, and statement of material facts as to

which plaintiff contends there is no genuine issue or dispute.

Response to Defendantss Statement of Material Facts

1. This paragraph is not disputed.




5. This paragraph is not disputed, except to the extent that it suggests that all

information not properly exempt from disclosure has been produced to Plaintiff.

6. This paragraph is not disputed, except to the extent that it suggests that all

information not properly exempt from disclosure has been produced to Plaintiff.

7. This paragraph is not disputed, except to the extent that it suggests that responsive



26/27

2

documents were properly redacted in accordance with 5 U.S.C. 552.

8. This paragraph is not disputed, except to the extent that it suggests that defendants

Vaughn Index and Declaration are legally sufficient and that only properly exempt responsive

information has been withheld from disclosure.

9. This paragraph states a legal conclusion, rather than a material fact, and that legal

conclusion is disputed.

Plaintiffs Statement of Material Facts Not in Dispute

Plaintiff submits that the following material fact, in addition to those presented by

defendant and not disputed by plaintiff, as set forth above, is not in dispute:

1. Decisions concerning the proposed location of the border fence in Texas have been

controversial, and there have been allegations that wealthy and well-connected landowners

have influenced the siting process. On February 18, 2008, an article published inThe Texas

Observerasserted that land owned by Ray L. Hunt, a Dallas billionaire and close friend of

President George W. Bush, will be bypassed by the construction project, amid suspicions of

undue influence. Melissa Del Bosque, Holes in the Wall; Homeland Security Wont Say Why

the Border Wall is Bypassing the Wealthy and Politically Connected, The Texas Observer,

February 18, 2008 (filed herewith as Exhibit A).

Respectfully submitted,

__/s/ David L. Sobel__________________DAVID L. SOBEL, D.C. Bar No. 360418

1875 Connecticut Avenue, N.W.Suite 650

Washington, DC 20009(202) 246-6180



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ANNE L. WEISMANN, D.C. Bar No. 298190

MELANIE SLOAN, D.C. Bar No. 434584Citizens for Responsibility and

Ethics in Washington

1400 Eye Street, N.W., Suite 450Washington, D.C. 20005(202) 408-5565

Counsel for Plaintiff
