Does the Misleading DHS/DOJ Report Violate the Information Quality Act?

President Donald Trump used the State of the Union to malign immigrants as terrorists. In support of his call to end the diversity visa lottery and family-based immigration—which he disparagingly refers to as “chain migration”—he made disingenuous claims regarding the threat these programs pose, including claiming falsely that diversity visas are handed out without “regard to the safety of the American people.” Such statements by the president, devoid of facts and context, corrode public discourse. And when these false narratives are disseminated by federal agencies, with the imprimatur of their expertise, they also violate the law.

The Department of Justice (DOJ) and the Department of Homeland Security (DHS) recently released a joint report rife with similarly false and misleading assertions about immigrants and U.S. citizens who are foreign-born. The agencies published it pursuant to Executive Order 13780, or Muslim Ban 2.0’s directive to collect information regarding the terrorist threat to the United States. The Trump administration has trumpeted the report’s assertion that 73 percent of persons convicted of international terrorism-related offenses are foreign-born, and is relying on that figure to support its ongoing efforts to reduce and restrict lawful immigration. Attorney General Jeff Sessions claims the Report “reveals an indisputable sobering reality—our immigration system has undermined our national security and public safety.” Homeland Security Secretary Kirstjen Nielson repeated the 73 percent figure in testimony before the Senate Judiciary Committee last month, calling it “likely just the tip of the iceberg.” Yet—as experts were quick to note—the 73 percent claim turns on its head any accurate representation of terror threats inside the United States. Rather than presenting a useful barometer of the actual terror threat, this inflated figure appears to have been arrived at in service of the Trump administration’s xenophobic view of immigrants.

The Information Quality Act is a powerful antidote to such government endorsement of “alternative facts.” Enacted as part of the Consolidated Appropriations Act of 2001, it directs the Office of Management and Budget to issue guidelines based on the principle that “agencies should not disseminate information that does not meet a basic level of quality.” To meet this standard, the guidelines require utility, objectivity, and integrity, and spell out what these standards mean in detail. For example, objectivity requires information to be presented in a complete and unbiased manner, and within a proper context. The guidelines focus on attributes that are indicative of high quality information, such as subjecting analysis to peer review, and ensuring that results are reproducible, including by making underlying data and methods publicly available. DOJ and DHS have each adopted these good-government principles in their own guidelines.

The joint DOJ//DHS report is subject to these guidelines. As a piece of political propaganda, masquerading as a reasoned analysis of terrorism data, we believe that the report plainly violates IQA’s standards, making its publication is a violation of the law. Among its many analytical errors, the report omits entirely any analysis of domestic terrorism, despite the very real threat it poses. This omission artificially inflates the proportion of incidents committed by foreign nationals, and correspondingly fails to recognize the significant proportion of terrorist incidents perpetrated by individuals without foreign ties. By presenting data about a terrorism subcategory as representative of the whole terrorism threat, and without proper context, the report fails the IQA’s test for objectivity.

Similarly, the report’s 73 percent figure bizarrely includes people who are only present in the United States because they were extradited to this country to face prosecution. Not only is this analysis misleading, but by not stating how many individuals fall into this category, the report again fails IQA guidelines requiring transparency of underlying data.

Building on the misleading 73 percent conclusion, the report provides eight “illustrative” examples of people convicted of terrorism-related offenses. Each appears to be a Muslim individual who arrived in the U.S. through the specific immigration provisions opposed by the president and highlighted in his State of the Union speech: family reunification, the visa diversity lottery, and refugee resettlement. Yet the report offers no detail about the population set from which these profiles were drawn, despite the IQA requirement that agencies provide supporting data. It is therefore impossible for outside observers to test the assertion that these examples are “illustrative,” in contravention of the IQA’s expectation that “the public can assess for itself whether there may be some reason to question the objectivity of the sources.” Those eight examples appear cherry-picked to serve the Trump administration’s anti-Muslim agenda, without any background data on the remaining incidents included in the report data.

The report’s presentation of information on gender-based violence is no better. Although it admits that the Trump administration has not tracked “information pertaining to gender-based violence against women,” rather than recommend further study, it substitutes irrelevant and misleading statistics. For example, it cites the average annual number of non-fatal domestic violence victimizations, an alarmingly large number, which reveals nothing about the proportion of those incidents perpetrated by foreign nationals. Indeed, studies show that gender-based violence rates are largely the same across all countries, which casts further doubt on the administration’s attempt to link gender-based violence and national origin. Again, this lack of context is contrary to IQA standards. Similarly, the report presents data from a study on honor killings, simply perpetuating stigmatization of Muslims. As it turns out, the author of the study has disclaimed its accuracy as “not terribly scientific.” The report did not disclose this fact, despite IQA guidance that “error sources affecting data quality should be identified and disclosed to users.”

Enshrining into law the fundamental principles of good government and citizen engagement, the IQA provides for an administrative process to correct poor-quality information. On Monday, using this process, we petitioned DOJ and DHS to retract and correct the misleading and biased information in the report. The agencies have 60 days to decide what to do.

The IQA has not been frequently litigated, but some courts have hinted at the possibility that judicial intervention may be appropriate to compel agencies to comply with its requirements. If any administration is likely to convince the courts that judicial enforcement of basic information quality standards is necessary, it is this one. 

About the Author(s)

Sirine Shebaya

Senior Staff Attorney with Muslim Advocates Previously directed the ACLU of Maryland’s Immigrants’ Rights Program Follow her on Twitter (@SirineShebaya).

Robin Thurston

Senior Counsel for Democracy Forward Previously a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice