Government Reorganization still in the dark to both Congress and the public

In January, I wrote about Government Reorganization in the dark and recounted the efforts of PEER and Government Executive to find the website that OMB purports to have set up to receive public comments, the 100,000 it alleges it received, and any information about the OMB’s plans for the agencies. The purported website previously at least took one to the bare bones OMB site; now it takes you on a wild goose chase.

That page cannot be found, or is located on an archived web page.

Past Administration Archives

On 2 May, Government Executive reported on the continuing saga.

…Agencies turned over initial versions of their plans to OMB in June of last year and final drafts in September. Lawmakers have not yet viewed the proposals and said they do not know if agencies met their deadlines.

The administration initially said the plans would be made fully available in Trump’s fiscal 2019 budget, though only a handful of agencies offered details in that document. Mulvaney recently told a congressional committee the White House would unveil the complete agency reform plans later this month.

As Gov Exec notes, however, Congress felt the need to mandate consultation on any consolidation or cutting of workforces:

Congress included several provisions in a recently passed governmentwide spending bill to ensure the Trump administration consults with lawmakers before consolidating offices or shedding workers. Several agencies have already risked running afoul of those provisions.

“The fact that the Republican-controlled Congress had to pass legislation to require the Trump administration to show us their secret reorganization plans is indicative of just how extensive the administration’s obstruction of congressional oversight has become,” Cummings said after the omnibus was enacted.

Government email with the ability to disable itself — or any use of its contents? What’s to worry about?

On April 25, Google announced the introduction of a new approach to information protection: Gmail confidential mode.

“With confidential mode, it’s possible to protect sensitive content in your emails by

  • creating expiration dates or
  • revoking previously sent messages
  • requiring additional authentication via text message to view an email.”

But, wait, there’s more…

“Built-in Information Rights Management (IRM) controls also allow you to remove the option to

  • forward
  • copy
  • download or
  • print messages.

This helps reduce the risk of confidential information being accidentally shared with the wrong people.”

What could possibly go wrong when government employees, lobbyists, and even nefarious folks are allowed to use these options (which may be all on or all off)?

American Oversight has already sent a letter to the National Archives and Records Administration (NARA) calling for government-wide guidance to prevent officials and employees from using Gmail’s new “self-destructing” and “revoking” email feature. As they note, the feature could allow government employees to delete agency records subject to the Freedom of Information Act (FOIA).  That feature would also be a violation of the Federal Records Act.

Of equal, if not greater, concern are the other features.  Government Information Watch is working with current and former government employees to identify the bars to the use of these “information rights” features (including requiring authentication to view messages) by officials and employees.

Their implementation could have deleterious effects on whistleblowers, journalists, and the ability to use information received through FOIA releases.

Stay tuned. We will be updating you as we go forward.

Mapping DOD military grade equipment provided to local police — by county, year, type

The Mapping Police Militarization (MPM) project, which went live last July, is a great resource for those trying to track equipment transfers to law enforcement agencies under the 1033 program from 2006 through 2013. The 1033 program, the federal government’s Law Enforcement Support Program, allows police to acquire surplus military equipment at no direct cost to use in counter-drug and counter-terrorism activities. Since the early 1990s, the Defense Logistics Agency’s 1033 program has transferred a wide range of excess military equipment; available equipment includes general law enforcement supplies (e.g., handcuffs, riot shields, holsters, binoculars, and digital cameras), and general office materials (e.g., office furniture, kitchen appliances, exercise equipment) as well as specialized military equipment including armored vehicles, aircraft, and weapons. [Emphasis added]

The MPM data are geocoded to U.S. counties or county equivalents in an interactive map. Each equipment transfer records the equipment details (type, amount), the date the equipment was provided, and the government’s estimated value of the equipment. To streamline analysis, the data are also coded into one of six broad equipment types (Weapons, Protective Equipment, Communications/Surveillance, Non-armored Vehicles, Armored Vehicles, and Miscellaneous).

The site maps the data by county. Selecting individual counties produces: a summary window that contains the 1033 program usage along with that county’s population and a link to download a detailed account of program usage across all years for the selected county. 1033 program usage for individual years can be found by selecting the year of interest from the list.

As MuckRock has noted, the Defense Department was previously loath to release detailed data for the 1033 program, particularly regarding which individual departments have received weapons, aircraft and other tactical equipment. In December 2013, the Defense Logistics Agency released two years of state-by-state transfer data to MuckRock, while the New York Times obtained data down to the county level in May 2014.

The DLA continues to make the information publicly (f you can find it…) available, updated quarterly, in a spreadsheet.

 

John Bolton Unleashed: the implications for accountability and for Congressional oversight

In a Just Security post today, Patrick Eddington provides a detailed history of John Bolton’s various stints in the Executive Branch—and his attitudes about the use of information to advance his agenda. As Eddington notes

Bolton rose to prominence in the Bush (43) administration’s first term as the Undersecretary of State for Arms Control and International Security Affairs, where he frequently clashed not only with his Bush administration colleagues but with career government servants at the State Department and the U.S. Intelligence Community. And it was those confrontations, along with credible allegations of abuse of surveillance powers [apparent attempts to obtain information on the identities of other American officials picked up in conversations by NSA] and [of] Intelligence Community analysts, that ultimately led to Bolton’s exit from the administration. [Emphasis added]

Now, Trump is putting Bolton in as the National Security Advisor, where he will not only see but be able to rouse the President to attack enemies “at home and abroad,” with

..unprecedented access to intelligence collection and surveillance authorities that routinely gobble up trillions of digital communications, including a vast (but currently undisclosed) number of text messages, emails, etc., belonging to Americans.

Bolton will also have access to FBI investigative information and capabilities, and be in a position to pressure the bureau or other federal agencies to investigate Americans in contact with foreign governments, nongovernmental organizations, foreign journalists, and more.

The problem for accountability is that

Because Bolton will be an appointee on President Trump’s staff, direct Congressional access to his communications with federal departments and agencies will likely be nonexistent, absent leaks to the media. Accordingly, the only chance of surfacing politically or legally dubious actions by Bolton or those working on his behalf will come from aggressive Congressional oversight of those same executive branch entities for any directives, taskings, or other orders that he hands down. [Emphasis added]

Eddington, a former Senior Policy Advisor to Rep. Rush Holt, identifies the tools available to the House and Senate to get information on Bolton’s activities from executive branch agencies—including Resolutions of Inquiry, appropriations riders, subpoenas, or holds on other executive branch nominations.

To be effective, such oversight must have  “at least a modicum of bipartisan cooperation.” And, in the current Congress, there’s the rub.

And, failing meaningful congressional oversight—and/or consequential internal executive branch disclosures and whistleblowing—the public will be completely in the dark.

The case for transparency if Wikileaks is a “nonstate, hostile intelligence service often abetted by state actors, like Russia”

In a post today on Lawfare, A Hard Transparency Choice: What is WikiLeaks?, Carrie Cordero raises important questions about the approach of the US government to Wikileaks.  Cordero points to the specific links that the Intelligence Community has drawn between the Russian government and Wikileaks, which are telling in themselves.  However, she notes that IC officials have openly and publicly “called out” Wikileaks as “a non state, hostile intelligence service often abetted by state actors, like Russia.”

As further revelations have been made about contacts between Julian Assange and individuals (such as Roger Stone) affiliated with the Trump campaign regarding the hacked Clinton campaign-related emails, the basis for the IC assessment of Wikileaks role remains largely hidden.  As Cordero notes, the U.S. government has not ever confirmed publicly whether it has an open counterintelligence investigation of WikiLeaks, although the Washington Post reported last spring that “the FBI has spent years investigating WikiLeaks…” and continued to do so in the context of the exfiltration of sensitive CIA hacking tools. Cordero points out that

As a result, the U.S. intelligence community has made specific statements about WikiLeaks—without really saying what it is, who funds it, who controls it and how it obtains information it releases. This makes it difficult for the public to accurately understand how to interpret WikiLeaks’ activities and releases. The current approach also makes it difficult for consumers of information released by WikiLeaks, including but not limited to professional journalists, to understand whether they are reviewing information that has been released as a public service, or as an orchestrated effort intended to manipulate, which activities may be supported, conducted or encouraged by a foreign intelligence service.

If we assume that WikiLeaks is subject to a longstanding investigation, and that there is a possibility that it or its officials have exposure to criminal charges, it may be that the FBI, Justice Department, special counsel, or all three would strongly oppose any further public disclosure by the intelligence community regarding what WikiLeaks is or how it operates. Yet, if WikiLeaks is, as director Pompeo has said, a “nonstate, hostile intelligence service often abetted by state actors, like Russia,” then there is a competing interest favoring a release of meaningful information that supports the assessment, by the intelligence community through appropriate transparency processes that have been developed in recent years. If such a public disclosure can be made, consistent with the need to protect classified information and accommodating ongoing investigative prerogatives, this seems like the right time to make it.

 

Trump Administration once again violates law and regulation on preserving government information

Yesterday, the Web Integrity Project at the Sunlight Foundation released its third report about Web censorship at the Office on Women’s Health (OWH): Removal of Breast Cancer Website and Related Webpages from within HHS’s Office on Women’s Health Website.  The report documents how the OWH Breast Cancer website and corresponding factsheets, which contained information about the disease, including symptoms, treatment, risk factors, and public no- or low-cost cancer screening programs, have been entirely removed from within the Department of Health and Human Services’ (HHS) Office on Women’s Health (OWH) website and are no longer found elsewhere on the OWH site.

The office did not proactively announce or explain the removals. The Paperwork Reduction Act1 requires that any agency must “provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products.”   The National Archives and Records Administration (NARA) also reminded agencies in December 20162 that when significant changes are made to agency websites, federal web records, including data sets, must be scheduled and transferred to NARA for preservation.  A question has been sent to NARA as to whether the agency has complied.

1 Paperwork Reduction Act, 44 U.S.C. § 3506(d)(3)

2 NARA, “Agency Responsibilities for Managing Web Records”, December 22, 2016.

Trump Admin’s secret reorganizations/staff decimation ‘swamped’ in Omnibus

In addition to the article detailing the rescue of 19 agencies Trump intended to eliminate, Government Executive writes today on the much broader issue of government reorganization—which it apparently wished to do under the congressional and public radars. In Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Eric Katz notes that in the omnibus spending bill approved this week Congress codified its role in overseeing the process of agency reorganization (and often related diminution of staffing levels). Some of the provisions would prohibit specific proposals or workforce cuts from taking place, while others simply demand congressional review and input.

At the Environmental Protection Agency, for example, lawmakers said in an explanatory statement they were rejecting Trump’s proposed cuts and not providing any funding for “workforce reshaping.” The measure would allow for just $1 million for reprogramming, which would include “proposed reorganizations, workforce restructure, reshaping, transfer of functions, or downsizing, especially those of significant national or regional importance, and include closures, consolidations, and relocations of offices, facilities, and laboratories.” Congress said it does not expect EPA to “consolidate or close any regional offices in fiscal year 2018.”

At the State Department, the bill would require the department’s inspector general to review the “redesign” at State and the Agency for International Development to ensure proper processes were used and the input of employees was included. State would also be required to report to Congress on any actions taken last year in response to Trump’s call for reorganization and subsequent guidance from the Office of Management and Budget. Congress said it expected State to maintain the foreign service and civil service staff levels on board as of Dec. 31, 2017.

The Education Department is directly blocked from decentralizing its budget office, which reportedly sparked dissension both within the agency and at the White House.“There remains concern that adequate information about and justification for its reorganization have not been transparently shared with Congress and stakeholders to be able to evaluate the changes being proposed, including the potential benefits or existing challenges they are meant to address,” lawmakers said.

The Food and Drug Administration, Commodity Futures Trading Commission and the rest of the Agriculture Department were warned to “be mindful” of the legislative branch’s role in setting funding levels for fiscal 2019.  Even though the Trump administration has instructed agencies to assume the drastic cuts proposed in the president’s budget would be implemented, Congress told agencies to hit the brakes.

“Therefore, the agencies should not presuppose program funding outcomes and prematurely initiate action to redirect staffing prior to knowing final outcomes on fiscal year 2019 program funding.”

A provision funding the departments of Commerce and Justice would specifically prohibit any preprogramming of funds to “reassign an employee or reorganize offices.” If those agencies were to issue a reduction in force, they must first provide 30-days notice to Congress.

The Homeland Security Department would need to provide lawmakers with 60-days notice if they follow through on reorganizing its headquarters.

OMB originally said agencies would make their reorganization and workforce reduction plans public in Trump’s fiscal 2019 budget. That document provided some details on agency plans when it was released in February, but promised more details in the president’s management agenda. The management agenda, released this week, also promised more details on the overhauls in the coming months. See Government Reorganization in the Dark for a discussion of how OMB has been hiding that information and has been sued for it.

As noted in that post, Rep. Elijah Cummings, D-Md., the top Democrat on the House Oversight and Government Reform Committee, has said the Trump administration’s proposals would amount to a “degradation of the federal workforce” that was occurring “in darkness.” He has called for hearings on the plans and attempted, unsuccessfully, to solicit them from OMB.

 

Small agencies killed in Trump’s 2017 “skinny budget’ are revived in Omnibus

According to articles in Government Executive today,  The 19 Agencies Trump Tried To Kill Aren’t Going Away and Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Congress has reasserted its authority and its standing as a co-equal branch of government.  A strong message is being sent to not only the President but also federal agencies and federal employees.

This post covers the The 19 Agencies Trump Tried To Kill Aren’t Going Away.

The President’s “skinny budget” released in March 2017 called for closing 19 small agencies to help offset a spending increase for the Defense and Veterans Affairs departments as well as some elements of Homeland Security. They were:

The African Development Foundation, an independent agency that establishes targeted development programs in underserved parts of Africa. It will receive $30 million through Sept. 30, 2019.
The Appalachian Regional Commission, an economic development agency created in 1965 to work in partnership with federal, state, and local government. It will receive $155 million, a rise of $3 million over its fiscal 2017 level.
The Chemical Safety Board, an independent reviewer of chemical industry accidents and regulations, will receive $11 million, the same as it received in 2017.
The Corporation for National and Community Service, which runs AmeriCorps/VISTA and other volunteer programs. It will receive $1.06 billion, a hike of almost $34 million, the bulk of it going to AmeriCorps, its largest program.
The Corporation for Public Broadcasting, which ensures Americans have universal access to public media’s educational and informational programming and services, will be fully funded at $445 million for both fiscal 2018 and 2019.
The Delta Regional Authority, a partnership that supports job creation and development in rural Mississippi and Alabama, will receive $25 million, a $10 million hike over 2017 funding.
The Denali Commission, which was created in 1998 to provide economic support throughout Alaska and in 2015 assigned to be a lead coordinating agency for relocating villages in rural Alaska that face environmental risks, will receive $30 million, double its 2017 budget. The commission’s federal co-chair, Joel Neimeyer, told Government Executive on Thursday that,

“With the pending decision by Congress to add an additional $15 million to the agency’s fiscal 2018 budget, it is clear that the legislative branch is now telling the commission to start implementing solutions to protect the built environment and carry out village relocations. The commission stands ready to transition to an implementing agency, and we are pleased that Congress holds this trust in our small independent federal agency.”

The Institute of Museum and Library Services, which enables museums and libraries to offer learning experiences for students and families, as well as to increase care for, and access to, the nation’s collections that are entrusted to museums and libraries by the public. It will receive $240 million, a hike of $9 million.
The Inter-American Foundation, created in 1969 to give grants that channel development assistance directly to the organized poor and “grass roots” in Latin America and the Caribbean. It will get $22.5 million through Sept. 30, 2019.
The Legal Services Corporation, created in 1974 to serve the legal needs of low-income Americans. It will receive $410 million, a hike of $25 million over fiscal 2017’s level.
The National Endowment for the Arts will get $152,849,000—a more than a $7 million increase.
The National Endowment for the Humanities will get $152,848,000—a more than a $7 million increase.
The Neighborhood Reinvestment Corporation, located in the Housing and Urban Development Department, is an independent organization created in 1977 that provides rental assistance to low-income Americans. It will receive $140 million, the same as 2017.
The Northern Border Regional Commission, a federal-state partnership for economic and community development in northern Maine, New Hampshire, Vermont and New York. It will receive a raise from $10 million in 2017 to $15 million.
The Overseas Private Investment Corporation, set up in 1971 to mobilize private capital to help solve critical development challenges and in doing so, advance U.S. foreign policy. It is authorized to spend up to $79.2 million for its administrative, noncredit account, a rise of more than $9 million over 2017’s level. That comes with an additional $20 million (double last year’s amount) for the cost of direct and guaranteed loans under the Foreign Assistance Act.
The United States Institute of Peace works with nongovernmental parties in conflict zones. It will receive $37,884,000 through Sept. 30, 2019, the same as last fiscal year.
The United States Interagency Council on Homelessness was created in 1987 to coordinate between 19 agencies to reduce homelessness. It will receive $3.6 million, the same amount it got in 2017.
The U.S. Trade and Development Agency, helps companies create U.S. jobs through the export of U.S. goods and services for priority development projects in emerging economies. It will receive $79.5 million through Sept. 30, 2019.
The Woodrow Wilson International Center for Scholars, which calls itself “the nation’s key nonpartisan policy forum for tackling global issues through independent research and policy dialogue, will receive $12 million through Sept. 30, 2019, a $2 million raise from last year’s level.
 

Government Information Watch joins coalition letter in opposition to nomination of Gina Haspel as CIA Director

Government Information Watch today joined 29 other civil society organizations in a letter to Senators expressing grave concerns regarding the nomination of Gina Haspel for Director of the Central Intelligence Agency (CIA), and asking that her nomination not be advanced until all of the records on her past involvement in the CIA torture program are declassified and released to the public.

The letter notes that

“[t]he Senate’s constitutional obligation to “advise and consent” on any nomination requires that it have full access to relevant information on the nominees before it. In Ms. Haspel’s case, the precise details of her role in the torture program remain classified. All senators should demand that those records be declassified and made public—before her nomination moves any further—so that they can actually discuss Ms. Haspel’s deeply disturbing background in open session, and so that the public can glean a more detailed picture of her role in one of the darkest chapters in U.S. history.

Ms. Haspel was a central figure in the torture program and the destruction of evidence of torture. Based on already available records and public reporting, it is clear by her wrongdoing that she demonstrated disregard for the rule of law and fundamental human rights.”

See also News: CIA argued torture sessions were actually business meetings so it could destroy videotapes.

Air Force’s guidance documents on public/press communications seem to be in conflict

According to several stories in Defense One, communications with the public and the press are being actively discouraged.  A March 13 story notes:

The U.S. Air Force is slashing access to media embeds, base visits and interviews as it seeks to put the entire public affairs apparatus through retraining — a move it says is necessary for operational security, but one which could lead to a broader freeze in how the service interacts with the public.

According to March 1 guidance obtained by Defense News, public affairs officials and commanders down to the wing level must go through new training on how to avoid divulging sensitive information before being allowed to interact with the press.

Before settling on retraining its public affairs corps and commanders, the service considered an even more drastic step: shutting down all engagement with the press for a 120-day period, a source with knowledge of the discussions said.

The guidance, which was marked as “for official use only,” was distributed to public affairs officials following a February 2018 memo on operational security signed by Air Force Secretary Heather Wilson and Chief of Staff Gen. Dave Goldfein. The story indicates that the guidance reflects a renewed focus on operational security that stems from the Trump administration’s recently released National Defense Strategy.

The seven-page guidance states:

In line with the new National Defense Strategy, the Air Force must hone its culture of engagement to include a heightened focus on practicing sound operational security. As we engage the public, we must avoid giving insights to our adversaries which could erode our military advantage. We must now adapt to the reemergence of great power competition and the reality that our adversaries are learning from what we say in public.

As Steve Aftergood notes, the new Air Force guidance does not distinguish between classified and unclassified information. Nor does it define the scope of “sensitive operational information” which must be protected.

Secrecy News also notes, moreover, that “As it happens, a counter-argument in favor of enhanced Air Force release of information was made just last week by Air Force Secretary Heather Wilson.” The  Public Affairs Management, Air Force Policy Directive 35-1, March 8, 2018, which notes in bold “COMPLIANCE WITH THIS PUBLICATION IS MANDATORY, states:

1. Overview.  The Air Force has an obligation to communicate with the American public, including Airmen and families, and it is in the national interest to communicate with the international public. Through the responsive release of accurate information and imagery to domestic and international audiences, public affairs puts operational actions in context, informs perceptions about Air Force operations, helps undermine adversarial propaganda efforts and contributes to the achievement of national, strategic and operational objectives. This directive establishes the framework for Air Force public affairs operations.
2. Policy.  The Air Force shall conduct comprehensive, active communication programs at all levels of command—in garrison and while deployed—to provide Airmen and their families, Congress and the American public timely, factual and accurate Department of Defense and Air Force information that contributes to awareness and understanding of the Air Force mission.
2.1. The Air Force shall respond to requests for releasable information and material. To maintain the service’s credibility, commanders shall ensure a timely and responsive flow of such information.
2.1.1.  The Secretary of the Air Force authorizes delegating the review of information proposed for public release to the lowest level competent to evaluate the content. Generally, reviewers shall assess the potential implications of releasing the information, ensuring it is not classified, does not disclose operationally sensitive elements, and does not conflict with established government policies or programs.
2.1.2.  Public affairs programs shall not practice propaganda, disinformation or activities intended to bias, mislead, misinform or deny otherwise releasable information.
2.2.  The Air Force shall develop and maintain cooperative and responsive relations with the public and media. Public affairs activities will support leaders at all levels in fostering public trust and support through active community outreach.
2.3.  The Air Force shall collect, preserve and accession visual information products to meet operational, informational, training, research, legal, historical and administrative needs.
2.4.  The Air Force shall organize, train and equip its bands to conduct appropriate engagements to foster sustained public trust and support, sustain warfighter morale, build partnerships, foster national pride, patriotism and service and recruit talented Airmen.