Monday, 22 February 2021

Why I'm suing the National Archives

Last night my attorney Kel McClanahan, Executive Director of the nonprofit National Security Counselors law firm, assisted by NSC intern Brendan Stautberg, filed a complaint on my behalf in Federal District Court in Washington against the National Archives and Records Administration (NARA), seeking a “declaratory judgment” that NARA is required to preserve and release to me and the public the records of the National Commission on Military, National, and Public Service which were transferred to NARA when the NCMNPS shut down in September 2020.

I’m extremely grateful to National Security Counselors for volunteering to take this case pro bono (I’m paying only for filing fees and other out-of-pocket expenses) and for their excellent work under a tight deadline (unlawfully) imposed by the National Archives through an ultimatum and threat of imminent destruction of the government records I have requested. They are a nonprofit law firm; if you’d like to help make it possible for them to offer pro bono services to journalists, researchers, and whistleblowers in cases like this, you can make a tax-deductible donation here.

The filing of the complaint came just in time, since NARA had threatened to destroy these records today unless I sued them.

There’s detailed information about the lawsuit on a separate page of my Web site. But I thought I should post a few brief explanations here in my blog for my friends who may wonder what’s going on.

Why does an anarchist ever sue anyone? I’m not invoking the government to force someone else to do something. I’m invoking one of the government’s own internal mechanisms, the courts, to try to get the government itself to follow what it professes to be its own rules.

I don’t sue people lightly. In fact, I’ve never sued a person. The only other time I’ve initiated a lawsuit was, like this case, a lawsuit in Federal court against a Federal government agency, not a person. In 2010, represented pro bono by the nonprofit First Amendment Project, I sued a division of the Department of Homeland Security under the Privacy Act and the Freedom of Information Act, to try to find out what records the DHS had about my international travel. While stalling my request, the DHS retroactively exempted its database of travel history files from the Privacy Act, and the court upheld the application of that exemption to a request I had made three years earlier. That’s the only time I’ve ever before been a party to civil litigation of any sort. I’ve been a criminal defendant, but that wasn’t by choice — it was the government’s decision to drag me into criminal court.

But why would anyone sue the National Archives? What are they doing wrong?

This case isn’t so much about what the National Archives are doing, but what they’re not doing: In this case, they aren’t preserving government records, and they aren’t making them available to the public. In other words, I’m suing to get the National Archives to do their job.

This case is not, lest there be any misunderstanding, about copyrighted works or private records obtained by the National Archives. I’m suing to get the National Archives to fulfill its core mission: preserving records of the government’s activities and making them available to the public to inform understanding and debate.

The records at issue — which the National Archives has in its possession and control, but has been trying to keep secret and has threatened to destroy — are records created by and for a Federal government agency, the National Commission on Military, National, and Public Service (NCMNPS), whose job was to conduct research and make recommendations to guide Congress, the President, and the courts. These records show what research the NCMNPS conducted or commissioned, what evidence and arguments it considered, and how it decided on its recommendations. The NCMNPS itself did its best to try to keep these records from ever becoming public, and designated them for immediate destruction when the NCMNPS shut down. But the duty of the National Archives, in accordance with the Federal Records Act and the Freedom Of Information Act, is to preserve these records and make them available to the public on request.

Congress, the Supreme Court, and the public are being asked to accept those recommendations as conclusionary, authoritative, and presumptively well-founded — but without knowing what, if any, research or evidence they were based on, or what arguments were or weren’t considered in the closed-door deliberations of the NCMNPS, with respect to which the only publicly available information comes from the incomplete responses to my FOIA requests. Many members of Congress want to use the recommendations of the NCMNPS as political cover to avoid public Congressional hearings and debate. But if Congress is going to “defer” to the NCMNPS for its decision, that makes public disclosure of the records of the still secret NCMNPS research and closed-door consultations with selectively invited lobbyists as important as those of Congress itself would be.

Don’t expect any more news about this case any time soon. I’ll post updates here, but Federal cases move slowly. It’s more likely that this lawsuit will result in changes in policies and procedures that will benefit other FOIA requesters, researchers, and members of the public in the future than that it will result in the release of additional NCMNPS records in time for them to be considered by Congress or the Supreme Court in their decision-making this year about women and the draft. But the reasons this lawsuit was necessary — the secrecy of the NCMNPS deliberations and the lack of public disclosure of the research, evidence, and arguments that do or don’t support the recommendations of the NCMNPS — underscore why Congress needs to hold its own full and fair hearings, especially on the issues including compliance and enforcement that the NCMNPS didn’t consider, and not take the NCMNPS report as a conclusionary excuse to avoid full public Congressional debate.

Link | Posted by Edward on Monday, 22 February 2021, 09:32 ( 9:32 AM)
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