Judge Orders Release of Memo On Why Optional Secure Communities Program Became Mandatory

(AP) A federal judge has ordered the release of a document expected to show why the U.S. government ended up mandating a program for identifying deportable immigrants after they've been detained.

U.S. District Judge Shira Scheindlin ordered the government late Monday to turn over a key memorandum by Nov. 1 to civil rights groups and immigrant advocates who had included it in a Freedom of Information Act request.

The memo was expected to explain why a program known as Secure Communities was optional for states and municipalities through at least the beginning of 2010, but became mandatory by the end of that year. The program enables the fingerprints of detainees arrested locally to be shared with federal authorities. Critics say the program has made immigrants reluctant to report crime because they fear deportation.

In a statement, the plaintiffs assert that the judge's order will shine light on a program plagued with secrecy and lies. Advocates for an immigration overhaul say the program has resulted in the deportation of people accused of traffic violations or other misdemeanors. Several states have objected to participating, arguing that immigration is a federal, not state, responsibility.

A government spokeswoman, Jerika Richardson, declined comment.

In her ruling, Scheindlin ordered the government to turn over at least 18 versions of what became known as the "October 2 Memorandum," with a redaction only of material that does not appear in the final version of the document or is not in any other public document. She said the final version must be released in full, except for one paragraph on the third page and an accompanying footnote that are exempt from her order.

The memo was completed four days before Department of Homeland Security Secretary Janet Napolitano told a news conference on Oct. 6, 2010 that the Secure Communities program was mandatory. The judge said the analysis in the memo "seems to be the only rationale that the agency could have relied upon and adopted as the legal basis for the policy."

The judge justified her decision to force the document's release in part by quoting an earlier appeals court ruling in which the 2nd U.S. Circuit Court of Appeals said an agency's view "that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA."

Earlier this month, Napolitano said the government is deporting record numbers of illegal immigrants, beginning with those who pose a public safety or national security threat.

The judge noted in her written decision that there was extensive evidence that the government during the last two years had discussed large portions of the memo in defending the policy. She rejected the government's argument that the memo was protected by attorney-client privilege, saying that the privilege is waived if the document or information in it has been shared with other individuals, which had occurred repeatedly in this instance.

She also cited a Supreme Court declaration that the need to protect deliberation over a proposed policy from public scrutiny disappears once an agency has adopted the policy.

"The same logic applies to documents otherwise protected by the attorney-client privilege," she wrote.