Protect Democracy, the Brennan Center for Justice, Michael F. Crowley, and Benjamin Wittes filed a complaint in federal court against the Department of Justice and the Department of Homeland Security under the Information Quality Act, demanding the retraction or correction of a misleading report on the national origin of terrorists.

On January 16, 2018, the U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS) issued a report: “Executive Order 13780: Protecting the Nation From Foreign Terrorist Entry Into the United States, Initial Section 11 Report.” The report was compiled and released in conjunction with the so-called “Travel Ban.” On February 8, Protect Democracy and several other experts filed a petition under the Information Quality Act (IQA), identifying a series of fundamental flaws in the report that violate the government’s own guidelines, and asking DOJ and DHS to retract or correct the report. The suit was filed in the District of Massachusetts.

“Democracy requires open debate based on shared facts,” said Jamila Benkato, Counsel at Protect Democracy. “The administration’s report is the opposite of shared facts. Our government issued a false report using flawed methodology that violates its own rules, for the sole purpose of justifying immigration-restricting policies that it already decided upon. This report is being used to attack vulnerable communities and poison democratic debate. By spreading disinformation, our own government is undermining our democracy.”

“Every time this White House has tried to justify its discriminatory immigration policies, it has presented incomplete or misleading information,” said Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The reason they make up or misrepresent the facts is simple: evidence that we can predict terrorism by looking at individuals’ national origin simply doesn’t exist. The White House should retract this report. Policies should be based on proof, not prejudice.”

According to the IQA and implementing regulations, DOJ and DHS reports are required to meet certain standards of “quality,” “objectivity,” “utility,” and “integrity” when providing information to the public. The report falls far short of these standards.

As many others have pointed out, the report is misleading, biased, methodologically unsound, and often just flat out wrong. The Trump Administration has repeatedly invoked and relied on the report as justifying the more restrictive immigration policy that it favors. Then-President Trump himself has tweeted about the report, doubling down on an inaccurate statement that he made during a February 28, 2017 address to Congress: “According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism-related offenses since 9/11 came here from outside of our country.” On April 24, the report was used by Fox News’ Tucker Carlson to make false statements about immigrants.

The Trump administration’s use of inaccurate data to justify banning people of certain nationalities from traveling to the U.S. was part of a larger pattern in which power-hungry leaders use disinformation to create a scapegoat — whether it be a political rival or a marginalized community — to help garner support for themselves and their policies. In autocratic regimes, the government uses propaganda to manipulate the public opinion. In Hungary, for example, autocratic leader Viktor Orban has used disinformation to launch a campaign against Hungarian-born philanthropist George Soros, pushing a “stop Soros” bill to shut down NGOs and plastering the country with billboards attacking him. In Turkey, Recep Erdogan’s government has used disinformation to neutralize political opposition, falsely labelling the pro-Kurdish Peoples’ Democratic Party as a terrorist group and jailing its leadership.

“Authoritarian regimes often obfuscate truth by publishing false information under a veneer of objectivity,” said New York University Professor Ruth Ben-Ghiat. “Government disinformation threatens our democracy. Government disinformation misleads the public and skews the public debate over critical policy issues. I’ve studied authoritarian regimes around the world — false and misleading reports like the one at issue here are something to be very worried about in America too.”

The IQA provides a remedy for such disinformation by ensuring that the government provides its citizens with accurate information so that they can make well-informed decisions about who and what to support.

On December 4, 2019, Massachusetts district court judge Douglas Woodlock heard the government’s motion to dismiss our lawsuit.

Criticism of the Government’s Report

Criticism of the Government’s Report

When the report was published, many scholars and journalists criticized it.

Think tank scholars

The Heritage Foundation’s David Inserra:

We must identify and understand the nature of the threat if we are to develop public policy that effectively addresses it. To do this, we need better, accurate data from the Trump administration

Cato Institute’s Alex Nowrasteh:

The new DHS/DOJ report produces little new information on immigration and terrorism and portrays some misleading and meaningless statistics as important findings.

New America’s David Sterman:

Even at face value, the report’s data reveals a substantial homegrown extremism challenge. By the report’s own numbers, a majority of the examined individuals were citizens and more than a quarter were natural-born citizens.

The Washington Institute’s Matthew Levy:

But it is simply not true to say that the “vast majority” of individuals convicted of terrorism offenses were foreign-born—unless one includes in that number those foreign terrorists who do not enter the country of their own volition at all but were extradited to the United States specifically to be prosecuted. If one included both domestic and international terrorism cases in the data set, it would show that only 18 to 21 percent of all individuals convicted of terrorism offenses were foreign-born.

Fact Checkers

The Washington Post Fact Checker’s Salvador Rizzo:

First, Trump misrepresents the report that serves as the basis of his claim. It focuses only on international and not domestic terrorism. The president conflates the two and gives the impression that the figures he cites apply for all kinds of terrorism. Second, the report raises several questions because of its lack of detail, its artful math and its inclusion of a significant number of individuals who did not immigrate but were transported to the United States to be prosecuted.

Plaintiffs

Lisa Daniels, Nora Ellingsen, Benjamin Wittes in Lawfare:

Put simply, the report presents the Justice Department’s data in a deceptive light—and the data still don’t support the president’s words. That’s because those words aren’t true, and true data even deceptively presented can’t support them.

Michael German, former FBI special agent now with New York University’s Brennan Center for Justice:

This kind of bureaucratic manipulation of what should be objective, professional analysis is what undermines confidence in these institutions.

The Brennan Center’s Harsha Panduranga at Just Security:

To buttress the president’s xenophobic and costly anti-immigration proposals, like the travel ban, the report rests on a bedrock of questionable statistics manipulated to frame foreign-born people – including American citizens – as “serious and persistent terror threat[s].”

What Academics Have to Say

What Academics Have to Say

Mary McCord, Senior Litigator from Practice, Institute for Constitutional Advocacy and Protection and Visiting Professor of Law, Georgetown University Law Center; former Acting Assistant Attorney General for National Security at the U.S. Department of Justice (2016-17), Principal Deputy Assistant Attorney General for the National Security Division (2014-16)

The January 2018 report published by DHS and DOJ in response to Executive Order 13780 is unfortunately both over-inclusive and under-inclusive.  Although the Executive Order required information about “foreign nationals” convicted of “terrorism-related” offenses, the report includes naturalized U.S. citizens as “foreign nationals” and excludes data on domestic-terrorism-related offenses.  The result is a report that presents an inaccurate picture of the threat of terrorism in the United States.

Ruth Ben-Ghiat, professor of history and Italian studies at New York University

Authoritarian regimes often obfuscate truth by publishing false information under a veneer of objectivity — what the Trump Administration has called “alternative facts.” Democracy requires an informed, engaged public, and government disinformation threatens our democracy. Government disinformation misleads the public — and the electorate — and skews the public debate over critical policy issues, making it harder for the public to hold the government accountable. I’ve studied authoritarian regimes around the world — false and misleading reports like the one at issue here are something to be very worried about in America too.

Case Documents

Case Documents