Trump administration wrongly tried to shut down protections under the Obama-era legislation known as Deferred Action for Childhood Arrivals

By Dennis Romero

Federal judge rules acting DHS head Chad Wolf unlawfully appointed, invalidates DACA suspension

“This is really a hopeful day for a lot of young people across the country,” said Karen Tumlin, a lawyer in the case and director of the Los Angeles-based Justice Action Center.

Image: CHad Wolf

Chad Wolf, United States Secretary of Homeland Security, sits in the audience during the 2020 Republican National Convention on the South Lawn of the White House on Aug. 27, 2020 in Washington, DC.Oliver Contreras / Sipa USA via AP fileNov. 14, 2020, 5:21 PM ESTBy Dennis Romero

A federal judge in New York City on Saturday said Chad Wolf has not been acting lawfully as the chief of Homeland Security and that, as such, his suspension of protections for a class of migrants brought to the United States illegally as children is invalid.

The U.S. Supreme Court ruled in June that the Trump administration wrongly tried to shut down protections under the Obama-era legislation known as DACA, or Deferred Action for Childhood Arrivals. On July 28, Wolf nonetheless suspended DACA pending review.null

Homeland Security did not immediately respond to a request for comment.

Image: President Donald Trump receives border wall construction and operational update in Yuma, Arizona
President Donald Trump speaks next to Secretary of Homeland Security Chad Wolf and Acting Customs and Border Protection (CBP) Commissioner Mark Morgan, as he receives a border wall construction and operational update in Yuma, Arizona, on Aug. 18, 2020.Tom Brenner / Reuters

Judge Nicholas Garaufis said court conferences would be held to work out details of his ruling.

He concluded, “Wolf was not lawfully serving as Acting Secretary of Homeland Security under the HSA [Homeland Security Act] when he issued the Wolf Memorandum” that suspended DACA.

Karen Tumlin, a lawyer in the case and director of the Los Angeles-based Justice Action Center, said the ruling means, “the effort in the Wolf memo to gut the DACA program is overturned.”null

She said the ruling applies to more than a million people, including more recent applicants and those seeking two-year renewals for protection under DACA.

“This is really a hopeful day for a lot of young people across the country,” Tumlin said.

Although President Donald Trump formally nominated Wolf for the job in summer, Wolf has yet to get a full vote in the Senate, keeping his role as “acting.” Garaufis cited the Government Accountability Office, which wrote in a report to Congress in August that Wolf was the beneficiary of an “invalid order of succession.”

The judge described an illegitimate shuffling of leadership chairs at the Department of Homeland Security, the agency responsible for immigration enforcement, for the predicament of Wolf’s leadership and that of his predecessor, Kevin McAleenan.

“Based on the plain text of the operative order of succession,” Garaufis wrote in the Saturday ruling, “neither Mr. McAleenan nor, in turn, Mr. Wolf, possessed statutory authority to serve as Acting Secretary. Therefore the Wolf Memorandum was not an exercise of legal authority.”

The ruling is part of an ongoing case with DACA recipient Martín Jonathan Batalla Vidal serving as the lead plaintiff in a six-plaintiff case against Wolf and the Department of Homeland Security. The suit initially challenged the state of Texas’ attempt to thwart DACA.

Nov. 14, 2020, 5:21 PM EST


How Private Prisons Are Profiting Under the Trump AdministrationBy Hauwa Ahmed

There are more people behind bars in the United States than there are living in major American cities1 such as Phoenix or Philadelphia. According to a 2018 report from the U.S. Bureau of Justice Statistics, nearly 2 million adults2 were being held in America’s prisons and jails. Of these 2 million prisoners, about 128,0633 were detained in federal or state facilities operated by private prison facilities, a 47 percent increase from the 87,3694 prisoners in 2000.

In 2016, the U.S. Department of Justice’s (DOJ) inspector general initiated a review5 to examine conditions at a number of for-profit prisons that the federal government contracted with from fiscal year 2011 through fiscal year 2014. A report on the findings indicated that private prisons had a 28 percent6 higher rate of inmate-on-inmate assaults and more than twice as many inmate-on-staff assaults compared with federally run or operated prisons. Furthermore, the report found that for-profit prisons in the United States were more likely to endanger inmates’ security and rights. These problems were so significant that in August 2016, the Obama administration announced that it would begin to phase out private prisons.7

HAs the number of incarcerated individuals in for-profit prisons grew, so did the number of immigrants detained in such facilities. According to a report by the Sentencing Project8, about 4,841 immigrants were detained in for-profit facilities in 2000. By 2016, that number had soared to 26,249 immigrants—a 442 percent increase.9 In the wake of the DOJ’s decision to phase out the use of for-profit prisons, the Homeland Security Advisory Council reviewed10 the U.S. Department of Homeland Security’s (DHS) use of private immigration detention facilities. Immediately after this review was announced, the stock prices of private prison company giants CoreCivic—formerly the Corrections Corporation of America—and the GEO Group Inc. dropped by 9.4 percent and 6 percent, respectively.11 A majority of the council agreed with the view that DHS should begin to move away from using private prison facilities but recommended that while they were still in use, they “should come with improved and expanded [U.S. Immigration and Customs Enforcement] oversight.”12

Following the inauguration of President Donald Trump in January 2017, however, the administration immediately shifted course to robustly support private prisons. In February of that year, then-Attorney General Jeff Sessions revoked the Obama administration’s initiative,13 and by April 2017, the DOJ began requesting bids for contracts to house federal inmates in private prison facilities14 once again. That same month, the GEO Group won a $110 million15 contract to build the first detention center under the new administration.

The fact that private prisons have serious, documented flaws raises questions as to why the Trump administration is so eager to support them. It is noteworthy that a pro-Trump PAC16 and the president’s inaugural committee17 have benefited from the private prison industry’s financial contributions. The Trump family business has benefited from the industry’s patronage as well.18

This issue brief details how Trump administration policies have increased the migrant detainee population—and the profits of private prisons—as well as endangered the lives of migrants being held in detention. The brief then illustrates just how much money private prisons have spent in U.S. political campaigns.

Trump administration policies have increased the number of migrants in detention

The Trump administration has implemented policies that have increased the number of migrants in detention. In early 2017, President Trump signed an executive order titled “Enhancing Public Safety in the Interior of the United States,”19 which instituted a massive expansion of immigration enforcement within the United States.20 It defined enforcement priorities so broadly21 that all undocumented individuals became subject to deportation orders, regardless of how long they had been in the country. The order represented a radical departure from the Obama administration’s approach, which prioritized the removal of migrants who had been found guilty of crimes. The executive order also directed state and local police to enforce federal immigration laws.

Similarly, in April 2019, current Attorney General William Barr rescinded a decision22 that enabled eligible asylum-seekers to request bond from immigration judges. This decision effectively instituted indefinite detention23 due to the fact that some migrants will now be held in detention for months or years before their cases are adjudicated. Moreover, in July 2019, DHS increased its application of expedited removal, a fast-track summary process24 for deporting noncitizens without a hearing from an immigration judge.

Last week, the Trump administration issued a final rule in a legally questionable attempt to make changes25 to the 1997 Flores agreement,26 a long-standing legal agreement specifying basic standards of care for minors in detention. As interpreted, this agreement requires that minors not be held in unlicensed secure detention facilities for more than 20 days. If implemented, the administration’s changes would effectively cause undocumented children and their families to be detained in inadequate, unlicensed facilities indefinitely.27 According to the president28 of the American Academy of Pediatrics, “no child should be placed in detention … even short periods of detention can cause psychological trauma and long-term mental health risks.”

As expected, the Trump administration’s hard-line immigration29 policies have led to a record-high number of immigrant detainees.30 Currently, there are about 54,344 immigrants31 detained in about 200 detention centers across the country. In 2017, the last time ICE produced such data, more than three-fourths32 of the average daily detainee population was being held in a for-profit detention facility. CoreCivic and the GEO Group are recipients of more than one-half of private prison industry contracts.33 These companies manage the detention34 of immigrants seeking asylum, those awaiting hearings in immigration courts, and those who have been identified for removal. For every 100 immigrant detainees, 32 are in GEO Group facilities, and 21 are in CoreCivic facilities.35

A record number of immigrants have died in detention.36 Since 2017, 27 immigrants have died in ICE custody, including a transgender woman named Roxsana Hernandez. Johana Medina Leon, also a transgender woman, died shortly after being released from custody.37 Of these 27 immigrants, 21 have died in facilities38 that are owned or operated by for-profit prison companies. In June 2019, the government’s own investigators determined that conditions in major private prison facilities were “unsafe and unhealthy”39 and violated ICE’s own standards.40 Despite these failures, the industry is benefiting enormously. Trump administration policies around enforcement priorities and detention practices have led to an increase in the demand for detention space, which has resulted in record-high profits for private detention facilities.

Under the Trump administration, ICE has significantly increased its enforcement operations, which has directly contributed to the rise in the migrant detainee population. In order to achieve this, ICE has consistently exceeded its budget. According to reporting from Buzzfeed News, there were 52,39841 people in ICE custody in May 2019. Congress provided funds for ICE to maintain an average of 45,000 people in detention per day in the latest budget, but with about 54,344 migrants in detention currently, the agency is overspending these funds by more than 15 percent.42 DHS has also increasingly begun diverting funds that had been earmarked for other agency operations to ICE in order to fund enforcement and detention operations. According to a Roll Call report, DHS intends to divert more than $200 million from other programs—including disaster relief programs—to fund immigration detention. This is the fourth consecutive fiscal year in which DHS has repurposed funds meant for other agency operations toward immigration enforcement

Significantly increasing the number of immigrants in detention means record-high profits for private prisons

During his 2016 campaign, then-candidate Trump expressed support for expanding the role of private prisons and espoused hard-line immigration policies.44 The morning after his election, stocks in CoreCivic increased by 34 percent,45 and those in the GEO Group rose by 18 percent.46 The two companies have informed their shareholders that federal government contracts are integral to their47 profitability.48 In memos to their shareholders, both companies acknowledge that policies with the potential to reduce the U.S. detainee population constitute potential risk49 factors50 to their business model.

Table 1 indicates the extent to which both CoreCivic and the GEO Group are dependent on three government agencies—ICE, the Federal Bureau of Prisons, and the U.S. Marshals Service—for their business.

In light of the fact that both CoreCivic and the GEO Group have depended on just three agencies charged with enforcement and detention operations for an average of about 48 percent of their revenues over the past two years, these two companies have a vested interest in the Trump administration’s punitive immigration policies to ensure that they remain profitable.

Conditions in private detention facilities endanger immigrants’ lives

In FY 2018, DHS received $3 billion for custody operations.51 At least 75 percent of the detention facilities for which DHS contracts are privately owned or operated. Despite this level of funding, conditions at these detention centers remain dangerous, and detainees’ rights are routinely violated. A 2019 Office of Inspector General (OIG) report52 on an investigation of ICE oversight of its contracted detention facilities indicates that the agency routinely waives its own standards, including those meant to ensure the health and safety of detainees. Additionally, ICE often fails to include its quality assurance surveillance plan (QASP)53—a key tool for ensuring that facilities meet ICE’s performance standards—in facility contracts and rarely imposes financial consequences for facilities that are noncompliant.

According to the OIG report, only 28 out of the 10654 contracts reviewed contained a QASP. The report55 also stated that between October 1, 2015, and June 30, 2018, ICE imposed financial penalties on only two occasions despite documenting thousands of instances in which facilities failed to comply with detention standards. The OIG also investigated three GEO Group facilities56 and found “egregious violations of detention standards.” All three facilities were found to have expired food, putting detainees’ health at risk. The GEO Group-operated Aurora, Colorado, facility failed to provide recreation and outdoor activities to detainees. At another GEO Group-operated facility in Adelanto, California, the OIG identified detainee bathrooms that “were in poor condition, including mold and peeling paint on the walls, floors, and showers, and unusable toilets.” All of these infractions violate ICE’s standards.57

According to a 2018 letter58 from the Office of Rep. Kathleen Rice (D-NY) to DHS, “Of the 298 transgender people ICE detained in FY 2017, 13% were placed in solitary confinement.” This not only has adverse effects on detainees’ mental health and well-being but is also against ICE’s rules.59 While there is existing Obama-era guidance60 on how to provide care for transgender migrants in ICE custody, the guidance is not mandatory. Due to ICE’s negligence, LGBTQ+ immigrants continue to face a higher risk of sexual violence61 than the general population. And as for-profit prisons continue to play an outsize role in immigration detention while providing substandard care, the health and safety of vulnerable populations such as LGBTQ+ migrants remain especially at risk.

Private prison companies are major players in political spending

Although private prisons have been ineffective at providing high-quality detention services, they have been effective at supporting political allies. In the 2016 presidential election, for example, the GEO Group and CoreCivic donated $250,00062 each to President Trump’s inaugural committee. In 2017, the GEO Group moved its annual conference63 to a Trump-owned resort in Boca Raton, Florida. Additionally, the GEO Group contributed heavily64 to the campaigns of some members of the U.S. House Appropriations Subcommittee on Homeland Security, the congressional subcommittee charged with funding DHS.

These companies and their employees also contribute to congressional candidates, donating overwhelmingly to those running as Republicans. According to the Center for Responsive Politics, CoreCivic and its employees have spent about $3 million65 on campaign contributions to federal candidates and PACs since 1990. Eighty-five percent of CoreCivic’s contributions to federal candidates since 1990 have gone to Republicans, while 13 percent of its contributions have gone to Democrats. Additionally, CoreCivic has spent $26.1 million on lobbying since 1998. The GEO Group and its employees have donated about $4.4 million66 to federal candidates and PACs since 2004. Since that year, 54 percent of the GEO Group’s campaign contributions went to Republican candidates, while 15 percent went to Democratic candidates.


The Trump administration’s immigration policies as well as existing immigration legislation create structural incentives to increase detention, which has largely been achieved through the use of private prisons. This increased role drives these companies’ profitability while endangering the lives of immigrants through inadequate care and a lack of accountability. Special interests should not profit from immigration enforcement. Congress and the administration should hold private detention facilities that violate ICE’S standards accountable.

Hauwa Ahmed is a research assistant for Democracy and Government at the Center for American Progress.


Federal appeals court rejects Trump effort to block access to financial records Trump do not pass go go directly to jail

Washington — A federal appeals court panel in New York ruled Wednesday that the Manhattan district attorney can enforce a subpoena to President Trump’s longtime accounting firm for troves of his business records and tax returns, the latest setback in the president’s efforts to block a New York grand jury from obtaining his financial information.

The unanimous ruling from a three-judge panel on the 2nd U.S. Circuit Court of Appeals paves the way for a potential second Supreme Court showdown in the yearlong dispute over the subpoena to Mazars USA, Mr. Trump’s accounting firm. The 2nd Circuit upheld a lower court’s decision dismissing Mr. Trump’s effort to block Manhattan District Attorney Cyrus Vance from obtaining the president’s financial records, but the court put enforcement of the subpoenas on hold to allow the president to appeal the ruling.null

The Justice Department said it is reviewing the decision.

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The dispute before the 2nd Circuit marks the second attempt by the president and his legal team to stop Manhattan investigators from gaining access to his business information. Vance is seeking Mr. Trump’s financial records, including his tax returns, dating back to 2011 as part of a criminal investigation into the president’s business dealings and hush-money payments made to two women who claimed they had affairs with Mr. Trump years before he was elected.

Mr. Trump suffered a string of losses in his first effort to block Vance from obtaining his records, with the Supreme Court in July rejecting claims he has “absolute immunity” from state criminal subpoenas, but sending the case back to the lower courts for further proceedings.

The president’s lawyers then challenged the subpoena again on different grounds, arguing it was overbroad and issued in bad faith.

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In its opinion, the 2nd Circuit panel rejected Mr. Trump’s claims.

“It is neither uncommon nor unlawful for grand jury subpoenas to seek categories of documents that may include some documents that ultimately prove to be unhelpful to the grand jury’s investigation,” the judges said.

In addressing Mr. Trump’s argument the subpoena was issued in bad faith and with retaliatory intent, the court said “the fact that the Mazars subpoena was issued to a third-party custodian adds nothing to the President’s bad faith claim. Such subpoenas are routine.”

“The direction of the subpoena to the President’s accountant, rather than to the President himself, does not prevent the President from objecting to the subpoena,” the 2nd Circuit said. “On the other hand, it relieves the President of the burden of supervising and being responsible for compliance, thus freeing the President from obligations that might otherwise interfere with his duties of office.”


“Proud Boys – 5 facts, stand back and stand by.” The SPLC Extremist File

Proud Boys – stand back and stand by.”

That was how President Trump responded during Tuesday’s presidential debate when he was specifically asked to “condemn white supremacists and militia groups.”

If Trump’s comments were intended as a condemnation and disavowal of the hate group known as the Proud Boys, that’s not how they’ve been received by the group itself. By the next day, the Proud Boys were celebrating Trump’s remarks. According to The New York Times, a Proud Boys member said that the group was “already seeing a spike in ‘new recruits.’”

We can shed some light on the Proud Boys because we have been tracking and studying the group since shortly after its founding in 2016, as part of our mission to monitor groups peddling hate and extremism across the country.

These details may be unsettling to read, and we sincerely wish we lived in a world where hate groups like the Proud Boys didn’t pose a threat and could be safely ignored. But when it comes to fighting extremism in the real world, we believe that information is power – that it is essential to study, track and monitor hate groups in order to stop their spread and limit their influence.

With that in mind, here are five fast facts to know about the Proud Boys:

  1. The Proud Boys is a group of self-described “western chauvinists” who adamantly deny any connection to the racist “alt-right,” insisting they are simply a fraternal group spreading an “anti-political correctness” and “anti-white guilt” agenda. However, actions speak louder than words. Rank-and-file members are known for anti-Muslim and misogynistic rhetoric, and they maintain affiliations with known extremists.
  2. The SPLC first designated the Proud Boys as a hate group in 2017, listing three chapters: New York City (the group’s headquarters), Dallas and Indiana (statewide). In 2018, we listed 44 active chapters of the Proud Boys across the U.S.
  3. Violence is a core part of the Proud Boys’ ideology and functions as their main recruiting tool. The “fourth degree” of Proud Boys membership is reserved for those who have fought against antifascists. And the violent rallies held this summer in Portland, Oregon, and other cities around the country have contributed to a major uptick in Proud Boys applicants on Facebook, the space they use to organize their chapters.
  4. Members of the Proud Boys have appeared alongside other hate groups at events like the violent Unite the Right rally in Charlottesville, Virginia, in August 2017. More recently, members appeared in a group with far-right skinheads attacking counterprotesters in New York City.
  5. The Proud Boys serves as a “gateway” group to other, even more extreme hate groups. Some white nationalists have described the Proud Boys as an essential step on their road to extremism because it introduced them both to a weakened form of white nationalist rhetoric and to more hardcore white nationalist figures

Our SPLC Extremist File on the Proud Boys contains detailed information about the group, including multiple examples of their hateful rhetoric in action.

We simply couldn’t do this work – studying, tracking and monitoring hate groups like the Proud Boys –


Trump’s executive order “intended goal is clear,” the “recommendations that will give more power and protection to law enforcement, reinvigorate tough-on-crime measures, and cut down on the rights of citizens.”

By Tom Jackman

Judge rules federal law enforcement commission violates law, orders work stopped as attorney general prepares to issue report

The LDF sued Barr and the commission in April, seeking an injunction to declare it was not properly constituted and to stop the commission from submitting or publishing any report. The commission’s

A national commission on policing launched earlier this year by President Trump and Attorney General William P. Barr has violated federal law by seating only people in law enforcement and failing to include members with different perspectives such as civil rights activists, defense attorneys or mental health professionals, a federal judge ruled Thursday as he halted the group’s work. The commission also did not file a charter, post public notice of its meetings or open them to the public, so even though it has already sent its draft report and recommendations to Barr for release later this month, the judge prohibited Barr from publishing a final report.

The ruling by Senior U.S. District Judge John D. Bates in Washington came in response to a lawsuit from the NAACP Legal Defense and Education Fund, which sought an injunction against the Presidential Commission on Law Enforcement and the Administration of Justice for violating laws on how federal advisory committees must work. Bates did not issue an injunction yet, but asked both sides to file briefs on what should be included in an injunction, said he would order the commission to change its membership and comply with other aspects of the law, and that it could not issue a report until it had done so.

“Especially in 2020,” Bates wrote, “when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today.”

The 18-member commission was composed entirely of state and federal law enforcement officials, with no one from the civil rights, criminal defense, social work, religious or academic fields. Members were sworn in on Jan. 22, and then heard months of testimony by teleconference from experts in a variety of police, prosecutorial and social fields. The commission also formed 15 working groups, with more than 100 members, to draft sections of the report focusing on topics such as “Reduction of Crime,” “Respect for Law Enforcement,” “Data and Reporting” and “Homeland Security.”

The Federal Advisory Committee Act requires that a committee’s membership be “fairly balanced in terms of the points of view represented and the functions to be performed,” so that its recommendations “will not be inappropriately influenced by the appointing authority.” The working groups were also largely tied to policing, with only five of the 112 members not from law enforcement. After the suit was filed, the speakers who testified before the commission were more diverse in professional backgrounds.

Police groups lobbied Congress for years to form a commission that would take a comprehensive look at improving American policing, as a similar panel did in the 1960s, to devise new ways to fight crime and use technology to improve policing. When various bills stalled in Congress, Trump signed an executive order last October creating the group, with the president acknowledging the assistance of the Fraternal Order of Police and the International Association of Chiefs of Police in launching the project.

The law also requires that advisory committee meetings be open to the public, with notice posted in the Federal Register, along with a charter for the committee. The commission did not post a charter or meeting notices in the register, but did send out news releases announcing the virtual meetings as well as posting transcripts and recordings of the meetings. Reporters and others could dial in and listen to the teleconferences. A meeting that Barr held in June with the commission, on the same day Trump signed an executive order on police reform, was not announced and the Justice Department declined to release a transcript or recording.

Trump’s order called for the commission to submit its report and recommendations to the attorney general, who was then required to send his final report to the president by Oct. 28. The Justice Department planned to release it at the International Association of Chiefs of Police convention in late October, according to an email in the court file. Now, the report and the commission’s months of work are in limbo.

Justice Department spokeswoman Kerri Kupec said the department, which provided staff and guidance to the commission, declined to comment.

Natasha Merle, one of the LDF lawyers who argued the case, said she didn’t think it was too late for the commission to comply with the law and incorporate new viewpoints. But to offer civil rights groups such as LDF a seat at the commission table, “and then put out the report as is, that is not a seat at the table,” Merle said. “We would say a seat at the table is allowing substantive comments, hearings and a new report. For there to be any real relief, to really get at the crux of the issue, you would have to incorporate these members’ viewpoints and put them into the report.”

The LDF sued Barr and the commission in April, seeking an injunction to declare it was not properly constituted and to stop the commission from submitting or publishing any report. The commission’s “intended goal is clear,” the LDF’s lawsuit argued: “recommendations that will give more power and protection to law enforcement, reinvigorate tough-on-crime measures, and cut down on the rights of citizens.”

Before the suit was filed, The Justice Department had provided a detailed outline on April 10 to members of the “Respect for Law Enforcement and the Rule of Law” working group for its chapter of the report, according to documents the LDF later obtained and filed in the case. The outline recommends that the Justice Department “should work to correct the myth of excessive use of force by law enforcement officers” and “should play a leading role in correcting the narrative regarding the number of individuals incarcerated in the United States.”

Last month John J. Choi, the prosecutor in Ramsey County, Minn., where St. Paul is located, resigned from a working group of the commission, saying the commission “had no intention of engaging in a thoughtful and open analysis” of the American justice system, “but was intent on providing cover for a predetermined agenda that ignores the lessons of the past.” A Justice Department spokeswoman noted that when Choi resigned, his working group had already submitted its report.

Justice Department lawyers argued that the commission doesn’t fall under the federal committee law, known as FACA. Instead, it is exempted under another law, the Unfunded Mandates Reform Act, or UMRA, which does not require diverse membership or public notice if a committee’s meetings “are held exclusively between Federal officials and elected officers … or their designated employees with authority to act on their behalf.”

Judge Bates, who has served on a number of committees dealing with legal procedures and is chair of the federal judiciary’s Advisory Committee on Civil Rules, seemed skeptical of this exemption in oral arguments on Sept. 17. First, he asked if there were any commission members “who have backgrounds in civil rights organizations … criminal defense … community organizations … that are not police organizations?” Justice Department attorney Bradley P. Humphreys said he did not have the members’ résumés but it was “certainly possible they have that experience.”

Bates then noted that nonmembers have testified in the commission’s hearings, though the exemption to FACA cited by Humphreys says the meetings will be held “exclusively between” the commission members. “It’s the commission that’s driving the ship,” Humphreys said. “The explicit purpose is to make recommendations to the president.”

“Just because that’s its purpose,” Bates responded, “doesn’t mean it’s outside FACA. FACA exists to have some specific requirements, unless some exemption applies. The exemption in UMRA is pretty specific.”

Bates, an appointee of President George W. Bush, ruled Thursday that FACA did apply to the commission, and the UMRA exemption did not. “Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement,” Bates wrote, “than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.”

Bates acknowledged that the commission is in its end stages, required to produce its report by Oct. 28 and disband within 90 days. He instructed both sides to file briefs by next week on possible injunctive relief “requiring the Attorney General and the Department of Justice to ensure the Commission has a fairly balanced membership.” He also ordered the commission to file a charter and designate a federal officer as required by FACA, and “refrain from publishing any report produced by the commission until the requirements of FACA are satisfied.”

Miriam Krinsky, executive director of Fair and Just Prosecution, a national group of elected prosecutors working toward criminal justice reform, said that, “The skewed makeup of the Commission and its working groups — and its secretive and closed process — underscores the bias and predetermined agenda inherent in the establishment of this group. … Sadly, at a time when trust in law enforcement is at an all-time low, this Commission represents nothing more than a sham proceeding designed to further a political agenda.”

The commission’s members are:

Chairman: Phil Keith, director of the Office of Community Oriented Policing Services. Vice Chairman: Katharine Sullivan, principal deputy assistant attorney general of the Office of Justice Programs. Commissioners: David Bowdich, deputy director, FBI; James Clemmons, sheriff of Richmond County, N.C.; D. Christopher Evans, chief of operations, DEA; Frederick Frazier, Dallas police officer; Robert Gualtieri, sheriff of Pinellas County, Fla.; Gina Hawkins, police chief in Fayetteville, N.C.; Regina Lombardo, acting director of ATF; Erica MacDonald, U.S. attorney for Minnesota; Ashley Moody, Florida attorney general; Nancy Parr, commonwealth’s attorney in Chesapeake, Va.; Craig Price, secretary of the South Dakota Department of Public Safety; Gordon Ramsay, chief of police in Wichita; David Rausch, director of the Tennessee Bureau of Investigation; John Samaniego, sheriff of Shelby County, Ala.; James Smallwood, Nashville police sergeant; Donald Washington, director of the U.S. Marshals Service.