Author: Patrice McDermott

A Possible Step Forward on Defense Department Declassification

Patrice McDermott Government Openness, Secrecy

The Senate version of the National Defense Authorization Act for FY 18 (HR 2810, sect. 1089) contains a surprising provision that requires the Secretary of Defense to declassify certain classified documents regarding military exposures to toxic releases. Specifically,

The Secretary of Defense shall declassify documents related to any known incident in which not fewer than 100 members of the Armed Forces were exposed to a toxic substance that resulted in at least one case of a disability that a member of the medical profession has determined to be associated with that toxic substance.

Of course, there are limitations:

(b) Limitation.–The declassification required by subsection (a) shall be limited to information necessary for an individual who was potentially exposed to a toxic
substance to determine the following:
(1) Whether that individual was exposed to that toxic substance.
(2) The potential severity of the exposure of that individual to that toxic substance.
(3) Any potential health conditions that may have resulted from exposure to that toxic substance.

and a critical exception:

(c) Exception.–The Secretary of Defense is not required to declassify documents under subsection (a) if the Secretary determines that declassification of those documents would materially and immediately threaten the security of the United States.

This exception appears potentially quite broad, but as Steve Aftergood pointed out in Secrecy News

That is a far more stringent standard than is provided by the executive order on classification, which vaguely permits withholding of information whenever it “could be expected to cause damage to the national security.”

In effect, the Senate bill overrides the executive order with respect to the specified documents on toxic exposures by mandating declassification with new, narrower criteria for withholding.

He further noted that the provision is noteworthy

because it does not simply declare a “sense of Congress” in favor of declassification or call for a “review” of classified records. It actually requires declassification to be performed.

As Aftergood points out, it shows that Congress has the power to help to correct errors and abuses in classification policy.

The provision was authored by Senator Jerry Moran (R-Kan.) and co-sponsored by Sen. Jon Tester (D-Mont.). In a news release, Sen. Moran stated,

Without declassification of these documents, many of our veterans are left without proof of the exposure they suffered, preventing them from being able to establish their service-connected conditions and secure a disability rating that makes them eligible to receive the care and benefits they deserve to help them cope with the residual health damage.

This could, of course, also be said about other situations and actions taken by the US government, such as the previous torture of some of the detainees at Gitmo — which prevents their cases from moving forward in the military commissions.

State Tax Havens: Shell Company Secrecy Enables Harm to the United States

Patrice McDermott Secrecy

In a September 20, 2017 article in Foreign Affairs, Casey Michel discusses how the United States has become has become one of the most important destinations for offshore ownership vehicles, enabling tax evasion, corruption, and crime and offered the world some of the foremost tools for combating crime and grand corruption. The Department of Justice Kleptocracy Asset Recovery Initiative was formed in 2010 to

“curb high-level public corruption around the world. Led by a team of Department of Justice prosecutors working in tandem with the FBI and other federal law enforcement agencies, its mission is to forfeit the proceeds of corruption by foreign officials and, where appropriate, to use recovered assets to benefit the people who were harmed. Individuals with information about possible proceeds of foreign corruption located in or laundered through the United States should contact federal law enforcement or send an e-mail to kleptocracy@usdoj.gov.”

Casey and Ana Swanson author of an April 2016 post  How the U.S. became one of the world’s biggest tax havens note that, contrary to popular belief, notorious tax havens such as the Cayman Islands, Jersey and the Bahamas werre far less permissive in offering them (as researchers) shell companies than states such as—primarily, Delaware, Nevada, and Wyoming—but also including Montana, South Dakota, Wyoming  and New York.

A combination of lax requirements at the federal government level and the abuse of federalism at the level of the states has created this dilemma.  Although the federal government has signed on to international agreements committing the United States to disclose company ownership—and even though many other offshore havens require this basic level of transparency—the US federal government does not force registering companies to identify their “beneficial owners” (those who will ultimately benefit from the company’s business or holdings).  Federal officials who do seek such information, moreover, encounter push-back from state-level authorities. For their part, U.S. company service providers—the groups that form “shell companies”* on behalf of anonymous clients—face relatively little pressure to do such identification, certainly not from the states benefiting from the registrations.

Because the negative consequences of their permissiveness mostly land elsewhere—and serve to let kleptocrats plunder their own countries, Michel notes, the states have little reason to introduce stricter rules or to more rigorously enforce those already in place. A 2016 investigation by National Public Radio found that Wyoming had audited only 20 of its 450 company service providers since 2009.

The negative consequences of the secrecy provided by shell companies hit home as well, however.  Anonymous companies represent an important nexus of corruption, money laundering, transnational organized crime, and terrorism, which directly harm U.S. interests. As a recent highly-informative post by Jodi Vittori, on the Council on Foreign Relations site, points out the secrecy enables “terrorists, criminals, and their ilk to use American corporations, real estate, and trusts to finance activities that harm the United States and its foreign interests.”

The effects of the secrecy may get Congress to act: current bills include Corporate Transparency Act (S.1717/H.R. 3089) and the True Incorporation Transparency for Law Enforcement (TITLE) Act (S. 1454).

*Anonymous shell companies are often no more than a title in a corporate registry and a name plate on a door; the actual person or persons who own and control the company—the so-called beneficial owners—are either concealed or not recorded at all. These companies enable the powerful and connected to hide their assets from law enforcement, tax authorities, or other interested parties, frequently by nesting these companies inside a complex web of businesses incorporated in different jurisdictions.

Often, shell companies are established through a corporate service provider—a company that can incorporate on behalf of one or more individuals, a firm, a charity, or some other party. Instead of recording the actual beneficial owners, the company can be registered to someone who rents out his or her identity, known as a nominee. This nominee can be a lawyer, law firm, relative, or other person connected to the real owner, or even another company or trust, which itself may be anonymously owned.1


 1 Jodi Vittori, How Anonymous Shell Companies Finance Insurgents, Criminals, and Dictators, Council on Foreign Relations.

Counting (Some of) the Costs of War

Patrice McDermott Government Openness, Secrecy

The FY 2017 National Defense Authorization Act included a provision—added by Rep. John Lewis (D-GA)—requiring the Defense Secretary and Internal Revenue Service Commissioner to post online all of the costs, “including the relevant legacy costs, to each American taxpayer of each of the wars in Afghanistan, Iraq, and Syria.”  Defense One reports that, by October of next year, the Pentagon’s share of the wars in Afghanistan, Iraq and now Syria will have collectively cost taxpayers more than $1.5 trillion, according to the Defense Department’s figures. As the article notes, though, the figures do not include classified amounts spent on the wars by the CIA and other intelligence agencies.

There are, however, other “costs of war” that are not as easily quantified.  A project at Brown University, the Watson Institute Costs of War Project tracks the the Economic costs—under which they include: veterans care and disability; increases in the homeland security budget; interest payments on direct war borrowing; foreign assistance spending; and estimated future obligations for veterans’ care.

The Project also has documented the Human and Social & Political costs. Regrettably, the pages and much of the information on Human and Social & Political costs have not been updated in the past couple of years. These costs are not counted by the Defense Department, and some of the Social & Political costs are classified, such as “major human rights and civil liberties violations, including detention without trial, torture, expanded US government surveillance…”

What Happens When Agencies Don’t — or Won’t — Create Records?

Patrice McDermott Accountable Government, Secrecy

The first important thing to know is the Federal Records Act imposes obligations on agency heads to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency.” Moreover, the federal agencies have an affirmative obligation to retain all recorded information—”regardless of form or characteristics”— that was “made or received by a Federal agency under Federal law or in connection with the transaction of public business” and serves as “evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government….” 44 U.S.C. § 3301 (2012).  A thoroughly-researched memo by the Sierra Club Environmental Law Program details the record retention policies at the Environmental Protection Administration, the Department of Interior, and the Department of Energy.

The New York Times reported1 earlier this month on reports and indications of secrecy at the EPA—including employees sometimes being told not to take notes at meetings.  More troubling for accountability, Administrator Pruitt’s aides recently asked career employees to make major changes in a rule regulating water quality in the United States (Waters of the United States or WOTUS)—without any records of the changes they were being ordered to make.  Citizens for Responsibility and Ethics in Washington (CREW) has noted that “That same rule was initially backed up by an analysis of “the economic benefits of preventing water pollution,” but once Mr. Pruitt decided to reverse the rule EPA “‘economists were verbally told to produce a new study that changed the wetlands benefit[.]’”* 

As the above memo notes, EPA’s records policy covers “all records made or received by EPA employees under federal law or in connection with the transaction of public business, and preserved or appropriate for preservation as evidence of EPA functions, organization and activities or because of the value of the information they contain.”2 Records must be retained if they contain information related to how EPA carries out its mission, such as communicating EPA requirements, or documenting the agency’s
decision-making process.3 

In a letter to the Archivist of the United States, CREW points out that Mr. Pruitt and EPA “are evading public scrutiny of their decisions by failing to create records in the first place.  Not only are these actions bad from a public policy perspective, but also they appear to violate the FRA requirements to both document and preserve records reflecting essential EPA decisions and policies and how they are made.  Adequate documentation is one of the two main pillars of the FRA; EPA’s failure to create this documentation undermines the goals of the FRA and deprives the public of access to records that document how the agency is fulfilling its statutory mission.”

The letter requests that the Archivist exercise his authority and responsibility under the Federal Records Act to evaluate actions of the U.S. Environmental Protection Agency (“EPA”) and EPA Administrator Scott Pruitt that appear to violate the Federal Records Act, and make recommendations to EPA for their correction and “full compliance with the FRA and inform both the President and Congress of these violations.”

* There is a pattern in this Administration; see White House Blocks Report Showing Societal Benefits of Refugees in the US

1Coral Davenport and Eric Lipton, Scott Pruitt is Carrying Out His E.P.A. Agenda in Secret, Critics Say, New York Times, Aug. 11, 2017 ;  2  EPA Information Policy, Records Management Policy (dated 7/07/2005),  at 1 – from SCELP Memo;  3  Id at 3.

White House Blocks Report Showing Societal Benefits of Refugees in the US

Patrice McDermott Accountable Government, Government Openness, Secrecy

When the President released his second travel ban, it was accompanied by a Presidential Memorandum in which he called on the secretary of state to consult with the secretaries of Health and Human Services and Homeland Security and his White House budget director and — “[t]o further ensure transparency for the American people regarding the efficiency and effectiveness of our immigration programs in serving the national interest” — submit within 180 days “a report detailing the estimated long-term costs of the United States Refugee Admissions Program at the federal, state, and local levels, along with recommendations about how to curtail those costs.” As noted by the New York Times, the budget Trump released in May argued that refugees and other immigrants were a fiscal drain. “Under the refugee program, the federal government brings tens of thousands of entrants into the United States, on top of existing legal immigration flows, who are instantly eligible for time-limited cash benefits and numerous noncash federal benefits, including food assistance through SNAP, medical care and education, as well as a host of state and local benefits.” It would be less costly, it argued, if there were fewer refugees, since “each refugee admitted into the United States comes at the expense of helping a potentially greater number out of country.”  The White House apparently thought it was perfectly clear that the President was not interested in hearing about any benefits brought by refugees….

The internal (State, HHS, DHS) study, completed in late July but never publicly released, was obtained by The New York Times. The draft found that refugees “contributed an estimated $269.1 billion in revenues to all levels of government” between 2005 and 2014 through the payment of federal, state and local taxes. “Overall, this report estimated that the net fiscal impact of refugees was positive over the 10-year period, at $63 billion.” This report was spiked but, the Times notes, it was not clear who in the administration decided to keep the benefits-of-refugees information out of the final report. An internal email (shown to the Times), dated Sept. 5 and sent among officials from government agencies involved in refugee issues, said that “senior leadership is questioning the assumptions used to produce the report.” Continue reading →

Happy Birthday, U.S. Constitution. Can We Talk about the Constitution Annotated?

Patrice McDermott Government Openness

By Daniel Schuman, Demand Progress

Yesterday was the 230th birthday of the U.S. Constitution, signed at the Constitutional Convention in Philadelphia on September 17, 1787.

More than a hundred years ago, Congress ordered its Library to publish an annotated Constitution that explains that important document. Each edition, starting in 1913, records how our founding document has been interpreted by the U.S. Supreme Court, with new print volumes published each decade and updates published every two years.

One hundred years later, after a lot of prodding (2009, 2010, 2011, 2012, 2013) from us, a 2009 letter from Sen. Feingold, and a 2010 letter from the Joint Committee on Printing, the Library of Congress and Government Publishing Office began moving on publishing the Constitution Annotated online. There had long been a version available on the Congressional intranet, with hyperlinks and regular updates and everything, and a very limited version on GPO’s site, but now — finally — there’d be an online version that everyone could read, reuse, and that would have timely updates.

Well, that didn’t quite happen as we hoped. Instead, the Library/GPO released a new app that published the document as a giant PDF. It’s pretty darn impossible to read that on your phone. And it isn’t updated all that often. Compare that to the internal website available to Congressional staff, with hyperlinks, frequent updates , and the information available in a user-friendly way.

So we’ve continued (2013, 2014, 2016) calling on the Library, GPO, and their oversight committees to release the Constitution Annotated as it’s updated and in a machine-readable format. At this point, all that’s necessary is for the Library of Congress to mirror the webpages that are available internally and publish that. We’ll figure out how to piece it together. (Federal law already requires that the Constitution Annotated be publicly available, so there’s no concerns about confidentiality.)

Wouldn’t it be great if every American could have at their fingertips an expert, non-partisan explanation of the U.S. Constitution? It’s be a great resource for everyone, from schoolchildren to scholars. If the Constitution Annotated were available in a slightly better format, it’d be easy to use that information to automatically update Wikipedia, or answer questions in a chatbot, or be put to a number of uses that raise our level of conversation.

It’s time. Let’s publish the Constitution Annotated online in a format that everyone can use.

Blocked federal tactic for discouraging FOIA lawsuits is being considered and amplified in states

Patrice McDermott Government Openness

According to a newly published review by The Associated Press and numerous state press associations,* during this year’s legislative sessions lawmakers across the country introduced and debated dozens of bills  that would close or limit public access to a wide range of government records and meetings. The sheer number of proposals, many of which did not become law, is worrisome, but one alarming trend is the practice of agencies suing those who seek access to public records.

The lawsuits by the governments name the requesters as defendants.  The suits do not seek damage awards, but even if agencies are ultimately required to make the records public, they typically will not have to pay the requesters’ legal bills.

This tactic is similar to — but goes well beyond — one that federal agencies used to deploy — before it was blocked by the 2007 amendments to the federal Freedom of Information Act.  The federal FOIA provides for the payment, by the government, of attorneys fees and court costs if the requester “substantially prevailed” in the lawsuit. Prior to the 2007 amendments, “substantially prevailing” required a court order declaring release of the information.  Now, should an agency voluntarily release information — at any stage of the litigation or because of a court order — the requester/plaintiff is considered to have “substantially prevailed” and may recover fees.

Previously, agencies — when it became clear (or they internally acknowledged) the court was going to rule against them — would release at least some portion of the requested records.  This had the effect of mooting the case and leaving requesters stuck for attorney’s fees.  This was an effective deterrent to requesters who relied on pro bono representation: the requesters did not prevail in court, hence, no compensation for attorneys’ fees, hence, few attorneys able/willing to take on such cases.

As the AP review notes, freedom-of-information advocates say the tactic has become a new way for governments to hide information, delay disclosure and intimidate critics.

*The state press associations are not identified in the article.

Expanding Accountability to Private Prison Companies that receive federal funding

Patrice McDermott Government Openness

Private prison companies that receive federal funding currently claim they are exempt from Freedom of Information Act (FOIA) requests due to a loophole in the current law. The Private Prison Information Act of 2017 (S. 1728) recently introduced by Sen. Ben Cardin would ensure that non-federally run prisons are held to the same standard of information sharing and record keeping as federal detention facilities. The essence of the bill says:

(a) IN GENERAL.—A record relating to a non-Federal prison, correctional, or detention facility shall be—
(1) considered an agency record for purposes of section 552(f)(2) of title 5, United States Code, whether in the possession of an applicable entity or a covered agency; and
(2) subject to section 552 of title 5, United States Code (commonly known as the ‘‘Freedom of 13 Information Act’’), to the same extent as if the record was maintained by  an agency operating a Federal prison, correctional, or detention facility.

(b) WITHHOLDING OF INFORMATION.—A covered agency may not withhold information that would otherwise be required to be disclosed under subsection (a) unless—
(1) the covered agency, based on the independent assessment of the covered agency, reasonably foresees that disclosure of the information would cause specific identifiable harm to an interest protected by an exemption from disclosure under section 552(b) of title 5, United States Code; or
(2) disclosure of the information is prohibited by law.

(c) FORMAT OF RECORDS.—An applicable entity shall maintain records relating to a non-Federal prison, correctional, or detention facility in formats that are readily reproducible and reasonably searchable by the covered agency that contracts with or provides funds to the applicable entity to incarcerate or detain Federal prisoners or  detainees in the non-Federal prison, correctional, or detention facility.

The bill has been endorsed by major organizations committed to government openness and accountability, civil liberties, human rights, and civil rights, including Government Information Watch. In a letter to senators, the groups write that “[t]he Department of Justice Inspector General has found that federal prisons run by private companies are substantially less safe and secure than ones run by the Bureau of Prisons … the public is largely in the dark with regard to the functioning of the many of this country’s private prisons, and the industry operates with a lack of oversight and accountability mechanisms. This dynamic hinders the ability of the government and public to ensure private prison companies are living up to their contractual obligations and not wasting taxpayer dollars.”

Will CBO go the way of OTA? The push to remove non-partisan expertise from Congress

Patrice McDermott Government Openness

In an op-ed published on Who.What.Why., Celia Wexler points out a disturbing similarity between the effort to defeat the work of the Congressional Budget Office and a successful effort in 1995 to kill the Office of Technology Assessment (OTA):

…in 1995, another nonpartisan agency created to help Congress, bit the dust when then-Speaker Newt Gingrich found its fact-based work not worth even its tiny budget. Republicans and Democrats banded together to try to save the Office of Technology Assessment (OTA), formed to deliver advice to Congress on emerging scientific and technical issues. But their efforts failed.

The efforts to defend CBO succeeded – this time. As Wexler points out, Rep. Mark Meadows may have been surprised by the outrage his attack on CBO provoked.

Every living former CBO director, both Republican and Democratic, wrote a letter to congressional leaders defending the agency in no uncertain terms, pointing out its 42-year history of providing nonpartisan budget estimates to Congress.

Nonprofit advocates also weighed in. The Project on Government Oversight, which trains congressional staff to do more effective oversight, predicted that gutting CBO “would send a chilling message to all other independent offices, such as the Congressional Research Service or the Government Accountability Office.” R Street, a Republican-leaning free-market advocate, teamed up with Demand Progress, a progressive policy advocate, to urge Congress to fully fund the agency.

In the end, the pressure worked. The House defeated these attempts to gut the CBO. For now.

DOJ Task Force on Crime Reduction and Public Safety Remains Closed and Unaccountable

Patrice McDermott Government Openness, Secrecy

On February 28, 2017, Attorney General Jeff Sessions announced the formation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, pursuant to the President’s Executive Order.  Chaired by the Deputy Attorney General (now Rachel Brand), Task Force members were said to be drawn from relevant Department components, and will include the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Administrator of the Drug Enforcement Administration (DEA), the Director of the FBI and the Director of the U.S. Marshals Service (USMS).

The task force is charged with developing strategies to reduce crime; identifying deficiencies in existing laws and policies that have made them less effective in reducing crime and proposing new legislation and policies to improve public safety and reduce crime; evaluating the availability and adequacy of crime-related data and identifying measures to improve it; and conducting any other relevant studies.  In conducting its work, the task force will consult with federal, state, tribal and local law enforcement, law enforcement organizations and victims’ and community advocacy organizations, among others, to learn about successful local efforts and how they can best be supported at the federal level.

A publicly-available April 5 Memorandum  to Head of Department Components and United States Attorneys from Sessions directed the Task Force to “submit initial recommendations from the Task Force no later than July 27th”…  The Memo indicates that the “Task Force will accomplish its work through a variety of subcommittees, and those groups are already hard at work, benefiting from the expertise of many offices throughout the Department.”  The subcommittees were described as identifying, reviewing, making recommendations on:

…  overall violent crime reduction strategy, which will include focused enforcement against violent offenders. This subcommittee will also examine ways in which we can support local partners engaged in enforcement, prevention, and reentry efforts; leverage existing law enforcement efforts; and measure the effectiveness of our work;

…  existing policies in the areas of charging, sentencing, and marijuana to ensure consistency with the Department’s overall strategy on reducing violent crime and with Administration goals and priorities;

… use of asset forfeiture and make recommendations on any improvements needed to legal authorities, policies, and training to most effectively attack the financial infrastructure of criminal organizations;

…  the Hate Crimes Subcommittee will develop a plan to appropriately address hate crimes to better protect the rights of all Americans;

…  immigration enforcement and human trafficking to ensure that the federal government has an aggressive and coordinated strategy to deter those who violate our borders and subject others to forced labor, involuntary servitude, sex trafficking, and other forms of modern-day slavery.

In the Memorandum, Sessions directed the Task Force to “hold a National Summit on Crime Reduction and Public Safety within 120 days [August 3], so that we can learn from federal, state, local, and tribal law enforcement agencies, victims’ advocacy organizations, and community advocacy organizations about how we can best support and replicate successful local violent crime reduction efforts.” It further indicated that “In addition, as part of the important work the Task Force is undertaking to combat hate crimes, the Department’s Civil Rights Division will be reaching out to affected communities to hear directly what strategies and support are most needed to help reduce this particularly pernicious crime.”

A July 26 story in The Hill indicates that, while the Justice Department did not provide details on what recommendations the task force has provided,  Sessions signaled that he has been receiving and implementing recommendations from the task force: Sessions said in a statement that he has been getting recommendations on a “rolling basis…”  and that he has “been acting on the Task Force’s recommendations to set the policy of the Department. I will continue to review all of the Task Force’s recommendations…”

Five-plus months later, despite repeated requests from journalists and others federal officials have refused to officially disclose the identities of those on the panel, its meeting agendas, or what recommendations it is handing to the attorney general.

On August 1, Senator Ron Wyden sent a letter to AG Sessions asking that the recommendations of the Task Force “immediately be made public” and posing specific questions to the AG.