On February 2, 2017, 50 ACLU affiliates submitted FOIA requests seeking information about Customs and Border Protection’s on-the-ground implementation of the Muslim Bans at field offices around the country. When the government failed to respond in the time allotted, certain ACLU affiliates filed suit in April to get the requested records.

Since then, the government has released three “partial” responses that paint an incomplete picture of how CBP headquarters reacted. Because the FOIA requests now in litigation focus on how the bans were implemented locally, very few, if any, of the records produced thus far are responsive to the affiliates’ requests or relevant to the pending lawsuits.

But, because you have a right to know — and question — what the government is up to, we are publishing the documents the government released here and highlighting some themes that emerge from them.

Top Officials Were Confused About the First Muslim Ban

You may remember that shortly after the first Muslim Ban was announced, public confusion erupted about whether or not it applied to lawful permanent residents (LPRs). But it wasn’t only the public that felt confused — top government officials did, too. These documents reveal deep confusion among DHS agencies on this question.

Hours after the first Muslim Ban came down on January 27, Acting Commissioner of CBP Kevin McAleenan wrote to officials at the Department of Homeland Security (DHS) to ask, “Was it your understanding that the EO was intended to apply to LPRs?” Gene Hamilton, senior counselor to DHS, responded, “They should generally be provided the case-by-case exemption . . . provided that it is in the national interest to do so.” And McAleenan replied, “Understood. We want to faithfully and quickly execute the EO, but want everyone to know that this guidance changes our status.” In other words, Hamilton’s answer is not what McAleenan expected. Indeed, reflecting this, McAleenan’s estimate of affected travelers more than tripled from 175 to 600-800 individuals per day upon hearing that LPRs should be included in the estimate.

Jumping in on the thread, Principal Deputy White House Chief of Staff Kirstjen Nielsen wrote, “I believe this will be news” to “the Secretary” (though without specifying of which agency). CBP then communicated to staff that lawful permanent residents would require case-by-case exemptions from the first Muslim Ban.

But, five days later, Counsel to the President Donald McGahn issued a memorandum to the acting secretary of state, acting attorney general, and secretary of homeland security stating that the first Muslim Ban’s provisions did not apply to LPRs. He wrote, “I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals.