What’s At Stake in Trump Government’s Appeal of Our Win in George Gibney FOIA Case, ‘Muchnick v. Department of Homeland Security’

by Irvin Muchnick

The federal government’s decision to take to the Ninth Circuit Court of Appeals the Freedom of Information Act victory of Concussion Inc. for documents in George Gibney’s immigration file brings to a new level the threshold questions on the American side of the multi-decade cover-up of the disgraced former Irish Olympic swim coach.

In a nutshell, those questions are the classic ones: What did the American government — plus the taxpayer-subsidized American swimming establishment, in the form of USA Swimming and the American Swimming Coaches Association — know about Gibney’s history of dozens upon dozens of instances of sexual abuse of youth athletes? And when did they know it?

Let’s work through both the known existing information, and the targeted open questions suggested by it, from the state of the redacted records produced in the course of the year and a half of litigation of Muchnick v. Department of Homeland Security.

In December, District Court Judge Charles Breyer ruled substantially in our favor for further release of material from 20 remaining disputed documents. What is now before the Ninth Circuit is the appeal of that ruling.

Before breaking everything down, I pause to reiterate that the outcome of the appeal is not the be-all and end-all of the campaign to bring Gibney to justice and to hold accountable the American officials who appear to have shown blatant disregard for the safety of children in our own country. Behind the scenes, there is other movement on these fronts, in both Ireland and the United States, though I am not yet at liberty to divulge details. All along, my point has been that even had the government not appealed our FOIA win, there would have been more work to do in terms of interpreting and extrapolating from and acting upon records that surely still would have contained crucial, and sometimes tantalizing, redactions.

As for Muchnick v., etc., I am very confident that my fine attorney Roy Gordet will continue to prevail. And if the Ninth Circuit does affirm Judge Breyer and the government then wants to try taking it up the Supreme Court, it won’t be my first rodeo: I am the named respondent in the 2010 Supreme Court decision Reed Elsevier v. Muchnick, a landmark copyright class action on behalf of freelance journalists.

(We began this project on January 27, 2015, with “Why Is George Gibney — No. 1 At-Large Pedophile in Global Sports — Living in Florida? And Who Sponsored His Green Card?”, https://concussioninc.net/?p=9797. Complete chronological headline links to the ensuing series are at https://concussioninc.net/?p=10942.)

A summary of the remaining documents in dispute gives us a sense of what is at stake in the FOIA appeal.

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Document 2 is listed in the government’s Vaughn Index — a detailed list of withheld materials and asserted privacy exemptions for them — as “Memorandum from USCIS to John [sic] Gabney [sic], titled ‘DECISION ON APPLICATION FOR NATURALIZATION’”

Comment: Access to the fuller text would reveal whether this decision was rendered routinely or otherwise. If otherwise, the text could show specific factual or legal findings in support of the decision.

Document 8 is listed as “Record of Sworn Statement”

Comment: Did Gibney disclose his indictment in Ireland on 27 counts of indecent assault and unlawful carnal knowledge of minors? (Readers of our ongoing coverage know that the charges got killed, pre-trial, by a procedural ruling at the Irish Supreme Court; also that one of the justices sitting for that decision, who is now Chief Justice Susan Denham, is the sister of Gibney’s lawyer then.)

Another record fully disclosed by the U.S. government strongly fans suspicions that Gibney was untruthful in this sworn statement or in required disclosures on one or more applications. The document is dated September 27, 2010 — during the period when Gibney was applying for naturalized citizenship (following a decade and a half as a resident alien). This two-page document, which we have uploaded to http://muchnick.net/gibneyfurtherreview.pdf, states: “Examination of your N400 application shows that additional information, documents or forms are needed before your application can be acted upon.”

Gibney is directed to submit certified copies of documents showing: “If you have ever been arrested, cited, charged, indicated [sic], fined or imprisoned for breaking or violating any law or ordinance, … even if … the charges were dropped …”

For any such incident, Gibney is told to provide “Your own personal statement, typed or printed, describing, in detail, each incident, exactly what happened and your involvement in each offense; date and have your signature notarized.”

The instructions go so far as to state, “If unobtainable, sealed records must be re-opened.”

Document 20 is listed as “Internal Memorandum … related to a background check”

Comment: Especially in light of the background above, the pertinence of this document with respect to public curiosity about U.S. Citizenship and Immigration Services screening procedures seems obvious.

Document 21 is listed as “Law enforcement referral memorandum”

Comment: What law enforcement agency or agencies? Regarding what incidents, where and when? Referring what information?

Document 22 is listed as ““1 Page TECS electronic database printout from DHS background check, dated 7/14/10”

Comment: Attorney Gordet and I kept this on the list of disputed documents simply because I have no idea what a TECS electronic database printout means.

Document 23 is listed as “Background check memorandum prepared by USCIS …”

Comment: Again, obvious questions here flow from those raised by the previously cited documents.

Document 24 is listed as “1 page document related to IBIS Query …”

Comment: See comment under Document 22. I don’t know what an IBIS Query is, either.

Document 25 is listed as “5 page record of results generated by electronic database”

Comment: This description is far too vague to critique in any depth.

Document 26 is listed as “NBC N400 Prints. Record of biometric background check prepared by law enforcement.”

Comment: See comments under Documents 22, 24, 26.

Document 27 is listed as “1 page USCIS printout from electronic tracking system …”

Comment: Similar in vagueness to Document 25.

Document 28 is listed as “1 page printout from electronic database …”

Comment: More of the same vagueness.

Document 31 is listed as “TECS electronic database printout …”

Comment: And more.

Document 32 is listed as “Administrative document reflecting third party action and information”

Comment: What type of third-party action? What type of information? How did the administrative document process it?

Educated guess by me: The third party was Evin Daly and his Florida-based group Child AbuseWatch, and the information was their tracking of and published alerts about Gibney’s underground movements throughout the U.S. Some are alleged to have been abetted by the Knights of Columbus and Opus Dei.

Readers will recall that in the original pass of my FOIA in 2015, USCIS produced 102 pages, with all but four of those pages withheld in their entirety. One of the four unredacted pages was instruction language for a USCIS form document. The other three were printouts of articles from the AbuseWatch website.

So one of the disturbing conclusions from the government’s own pre-litigation production is that it knew itself, no later than 2010, of Gibney’s history.

Document 33 is listed as “Third party communication containing allegations …”

Comment: Again, this is most likely the Evin Daly material.

Document 34 is listed as “Immigrant Visa and Alien Registration”

Comment: It seems redundant to make further assertions of this document’s significance. I would add one important element: the mystery of whether Gibney landed a general lottery visa, under the Morrison or Donnelly programs of the time for Ireland-to-U.S. immigration, or got a B-1 (business-related) visa, or a special category for professionals of extraordinary accomplishment in their fields.

Document 35 is listed as “Visa Application”

Comment: See comment under Document 34.

Document 37 is listed as “Police Certificate of Character issued in Ireland”

Comment: Two things here. First, what in the world is a Police Certificate of Character? It sounds like something out of the 1936 Charlie Chaplin movie Modern Times, in which the jail warden hands the hapless Little Tramp a reference letter to help him find a job when he gets out.

On a less metaphorical note, it seems possible that after the titular palaver about “character,” this was a document used by Gibney to represent that he had no criminal convictions on his record. Of course, as we can see, USCIS application instructions reminded him that he was required to disclose more than just convictions.

My friends in the Irish news media have pinned down something else of great interest in this document: The time of its issuance, in 1992, though prior to Gibney’s 1993 indictment, came at a time when the allegations against him were in the air and charges were imminent. The possible use of this document in support of 1994 ff. American immigration applications is simply perverse; exposure of its contents raises serious questions about the procedures of officials tasked with determining who is allowed visas, green cards, and naturalized citizenship.

Document 40 is listed as “Offer of employment”

Comment: A proverbial potential smoking gun of the document batch.

Judge Breyer had made it clear that third-party names would remain redacted in his version of the document release, now under appeal. Therefore, we don’t know if this letter in public form could ever show, for example, the full letterhead of whatever club or organization was offering Gibney a coaching job in America. But in his opinion the judge wrote, “He” — meaning me — “hopes to uncover how American authorities allowed an alleged sexual predator to enter and reside in the United States despite the scandal swirling around him in his native Ireland…. He also suspects that the American Swimming Coaches Association greased the wheels for Gibney’s relocation.”

This does not establish with certainty that Breyer’s unredactions in the document now before the Ninth Circuit prove ASCA’s role. However, it is counterintuitive that the judge would have gone to the trouble of citing this suspicion if he were not tethering it to a newly produced document shining light on it.

Document 43 is listed as “Application for Immigrant and Visa Registration”

Comment: See comments under Documents 34 and 35.

Document 50 is listed as “Memorandum dated July 20, 2010, concerning a request for investigation sent by USCIS to ICE.”

Comment: ICE, of course, is the Immigration and Customs Enforcement agency. Need I say more?