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.


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.



Dam inspections to be public–in California. DHS still considers dams information SBU and keeps it off-limits

AP today reported that California Gov. Jerry Brown has signed legislation that seeks to beef up dam inspections following a near disaster that caused the evacuation of almost 200,000 people living downstream from the tallest U.S. dam. The measure sets standards for inspections and requires periodic review of dams’ original design and construction records. It also requires inspectors to consult periodically with independent experts and makes inspection reports public.

This site does not ordinarily cover state information policies, but the story brought to mind a FOIA case—from 2003 in the height of the ‘terrorists are going to get your information’ scare(-mongering) from the George W. Bush administration.  The Reporters Committee for Freedom of the Press wrote1 about in 2004, and I covered it in my 2007 book:

Glen Canyon Dam. In September 2001, a small environmental group filed a FOIA request for the federal government’s projections as to where the waters would go if the dam burst. The Bureau of Reclamation, which creates the “inundation maps” projecting what might happen, denied the request. In March 2003, the federal district court in Salt Lake City upheld2 the denial, ruling that the government could withhold the unclassified maps under an exemption to the FOIA for “law enforcement” records. One component of the law enforcement exemption protects against release of information that might help anyone circumvent the law—and the judge said that terrorists might make use of the information. The ruling included an oblique reference to “a dam failure as [seeking] a ‘weapon of mass destruction.’ ”3

Today’s story from California reminds us how far we have come—at least at the level of that state—but also what is at risk when allegations of potential threats by terrorists to Homeland Security are backed up by the courts and the Justice Department.

To this day, DHS considers information about dam safety to be “sensitive but unclassified”4 and keeps it behind a locked portal:

The HSIN-CS [Homeland Security Information Network-Critical Sectors] Dams Portal, managed by the Dams Sector-Specific Agency (SSA) within the Office of Infrastructure Protection/DHS, provides trusted and vetted public and private sector partners, including owners and operators…

2 Living Rivers, Inc. v. United States Bureau of Reclamation, 272 F. Supp. 2d 1313 (D. Utah 2003).  [March 2003]

U.S. Department of Justice. “Exemption 7f,”Item 14.

4 A marking for withholding information that is utilized with widely divergent ‘meanings’ by agencies. While it is (and has been since 2010) targeted for removal as an approved/recognized control designation, regrettably NARA has ceded to the agencies and “Existing agency policy for all sensitive unclassified information remains in effect until your agency implements the CUI program.”

E-mails obtained through FOIA confirm Scott Pruitt’s direct hand in removal of EPA information

According to e-mails obtained by the Environmental Defense Fund (EDF) in response to a  FOIA request, EPA Administrator Scott Pruitt directly approved the removal of a number of pages about climate change from the EPA website that appears to the public. EDF has posted the released files.

The emails center on a website purge at EPA in April 2017, reported by Chris Mooney and Juliet Eilperin last summer. Along with pages about climate change and climate science, the purge removed the page about the Clean Power Plan. EDF had previously obtained and posted information about climate change removed from EPA’s website.


Government Reorganization in the Dark

Public Employees for Environmental Responsibility (PEER is suing the Office of Management and Budget for the submissions made by the public in response to an executive order signed by President Trump in March and ensuing guidance from OMB.  According to PEER (as reported by Government Executive) Mick Mulvaney, the OMB director, made a YouTube video inviting  American citizens to weigh in with ideas for “making the federal government more efficient, effective and accountable to the American people.” The video was implemented through a May 15, 2017 Federal Register notice inviting public comment on improvements to the organization and functioning of the Executive Branch.

OMB subsequently set up a website for the public to submit those ideas, with comments due by June 12th. OMB has averred that it had received more than 100,000 submissions and distributed them to relevant agencies. The website is not to be found — although it is a federal record; the link takes one to the bare bones OMB site.1

As Government Executive reported in December, agencies first turned in rough drafts of their plans to OMB in April, which were not made public. Efforts by Government Executive to obtain copies through Freedom of Information Act requests were denied, with the administration citing the deliberative process to prevent their release.

Agencies were required to turn in the final drafts of their reorganization plans in September 2017. Those submissions, according to guidance issued by the Office of Management and Budget in April, were required to include both short and long-term plans to cut the size of their workforces. As Government Executive noted in the December article, those plans have remained a secret, with administration officials saying they would only be made public when the White House releases its fiscal 2019 budget.

In a December 19, 2017 letter to OMB Director Mulvaney, Representative Elijah Cummings told the Director that, as he knows,2 the Oversight and Government Reform Committee (on which he is the Ranking Member) has oversight of the federal workforce and therefore of the agency reform plans. Mr. Cummings told Government Executive that such reforms should take place in full view of the public and with proper oversight.

Cummings asked for the documents by January 3; OMB did not respond to an inquiry on whether it would meet Cummings’ request.

A panel of the Senate Homeland Security and Governmental Affairs Committee has held two hearings to examine the reorganization plans. OMB declined to testify at both of those hearings, telling the subcommittee it was too early to offer its thoughts to Congress. Instead, leaders from various agencies gave broad outlines of their goals going into the process. According to Government Executive, federal employee representatives and some lawmakers bemoaned the lack of transparency in the reorganization process, including a failure to include ideas from front-line personnel.

1 If I manage to unearth the site, I will post the information.
2 As a previous Member of Congress, if nothing else.

Seven Words You Cannot Say on…a CDC budget

Those of us of a certain vintage remember George Carlin and “7 Words You Can’t Say On TV“.  Who would have imagined that our federal government would come up with its own list? For all the outrage that Mr. Trump and his supporters express about “political correctness,” i.e., calling people and communities by the names by which they choose to be called, the Washington Post reports that this administration has its own list of, quite literally, politically incorrect words and terms.

The forbidden words are “vulnerable,” “entitlement,” “diversity,” “transgender,” “fetus,” “evidence-based” and “science-based.”

On Thursday, 14 December 2017, senior CDC officials who oversee the budget told policy analysts at the Centers for Disease Control and Prevention in Atlanta of the list of forbidden words —that may not be included in any document related to the budget and supporting materials that are to be given to the CDC’s partners and to Congress, according to an analyst who took part in the 90-minute briefing.

Alison Kelly, a senior leader in the agency’s Office of Financial Services, told the analysts that “certain words” in the CDC’s budget drafts were being sent back to the agency for correction: “vulnerable,” “entitlement” and “diversity.” Kelly told the group the ban on the other words had been conveyed verbally. [Emphasis added]

In some instances, the analysts were given alternative phrases. Instead of “science-based” or ­“evidence-based,” the suggested phrase is “CDC bases its recommendations on science in consideration with community standards and wishes,” the person said. In other cases, no replacement words were immediately offered.

The article by


The buying and selling of silence and the cost of secrecy

In an outstanding op-ed on today’s Washington Post, David A. Dana (Kirkland & Ellis professor of law at Northwestern Pritzker School of Law) and Susan P. Koniak (professor of law at Boston University School of Law) outline the costs to society of ‘court-sanctioned secrecy and nondisclosure agreements.’ In discussing the current environment, they note

Our courts and our legislators are guilty. Over the past few weeks, we have seen how our legal system has empowered and encouraged sexual predators to continue abusing women through secret settlements and nondisclosure agreements, despite knowing how dangerous silence can be.

Now is different, we’re told. A “cultural moment.” Laws will be reformed. Courts will change their rules. Lawyers, corporations, the American Bar Association and think tanks such as the Heritage Foundation will do a 180 and end their hawking of secrecy.

And pigs will fly.

Indeed, although public attention is at this moment focused on an obscure congressional fund used to secretly settle sexual harassment claims against lawmakers with taxpayer money,

Congress is not alone. Some local and state government agencies also use taxpayer funds to secretly settle in cases of police brutality and other serious wrongs, leaving the public in the dark on the facts.

To center the debate solely on secret settlements in government, however, is a mistake. Defective fuel tanks and tires that explode, toxic chemical spills, the Dalkon Shield, leaky breast implants, GM’s faulty ignitions and asbestos-saturated air — each of these examples involves dangers to the public that lawyers and companies have kept hidden through agreements that prevent victims from speaking out.

Most courts in the United States allow vital information to be kept from the public. Only a handful of states have passed legislation limiting secrecy in cases that involve substantial public hazards. And even in those few states with legislation, the “hazards” are generally too narrowly defined, not covering, for example, cases of sexual abuse, harassment or racism in the workplace.

Dana and Koniak additionally focus attention on the question of cui bono—beyond the wrong-doers.

Their commentary is a strong and important addition to the current discussion.

Deregulating Transparency— DOT and the Airlines v. Public

USA Today recently reported that—in the Administration’s effort to reduce regulations and their costs—the Transportation Department has abandoned two proposals from the Obama administration that aimed to provide air travelers with more information about fees on bags and other services before they buy tickets.

According to DOT Secretary Elaine Chao, “The department is committed to protecting consumers from hidden fees and to ensuring transparency. However, we do not believe that departmental action is necessary to meet this objective at this time. … Although we believe there would be benefits of collecting and publishing the proposed aviation data, the department also takes seriously industry concerns about the potential burden of this rule.”

The burdens on industry, that is.  According to USA Today, “most airlines said the costs providing the information would be burdensome and the information wouldn’t increase the transparency of pricing. Airlines also worried that the disclosures could require reporting of propriety information.”

In other words, as in most Republican administrations, asserted burdens outweigh public benefits from transparency and the ability to make informed choices.

Continued resistance to transparency and accountability — DoD’s massive toxic waste responsibility

In it’s most recent update to a disturbing and deeply-researched ongoing report, ProPublica documents the state of toxic pollution left behind by the military across the U.S. This is a problem of massive proportions that is more than three decades in the making — ever since

Congress banned American industries and localities from disposing of hazardous waste in these sorts of “open burns,” concluding that such uncontrolled processes created potentially unacceptable health and environmental hazards. Companies that had openly burned waste for generations were required to install incinerators with smokestacks and filters and to adhere to strict limits on what was released into the air. Lawmakers granted the Pentagon and its contractors a temporary reprieve from those rules to give engineers time to address the unique aspects of destroying explosive military waste.

A quarter of a century ago, the U.S. Senate passed a resolution that ordered the Department of Defense to halt the practice “as soon as possible.”

As part of this investigation, ProPublica acquired a dataset of all facilities that the Department of Defense considers contaminated—and have used the data to publish an interactive news application called Bombs in Your Backyard that enables the public to find hazardous sites near them — and learn what, if anything, is being done to remedy the pollution.

The “what, if anything, is being done to remedy the pollution” is a telling saga of the Pentagon turning its head to avoid confronting the devastation created by its “open burn” policy and practice.  It merits a close reading. Below are some highlights on the secrecy and lack of accountability aspects.

ProPublica points to federal records identify nearly 200 sites that have been or are still being used to open-burn hazardous explosives across the country. Some blow up aging stockpile bombs in open fields. Others burn bullets, weapons parts and…raw explosives in bonfire-like piles.  While the “facilities operate under special government permits that are supposed to keep the process safe, limiting the release of toxins to levels well below what the government thinks can make people sick,” according to ProPublica, officials at the Environmental Protection Agency, which governs the process under federal law, acknowledge that the permits provide scant protection.  Indeed, internal EPA records obtained by ProPublica show there are

…at least 51 active sites across the country where the Department of Defense or its contractors are today burning or detonating munitions or raw explosives in the open air, often in close proximity to schools, homes and water supplies. The documents — EPA PowerPoint presentations made to senior agency staff — describe something of a runaway national program, based on “a dirty technology” with “virtually no emissions controls.” According to officials at the agency, the military’s open burn program not only results in extensive contamination, but “staggering” cleanup costs that can reach more than half a billion dollars at a single site.

The sites of open burns — including those operated by private contractors and the Department of Energy — have led to 54 separate federal Superfund declarations and have exposed the people who live near them to dangers that will persist for generations.  …

Of course, the Pentagon could determine with greater accuracy any possible health threat. It could, for instance, actually sample and test the emissions generated by the burns. Aside from a few research sites, neither the EPA nor the Pentagon was able to point to an example where this was done.

It has fallen to non-government researchers, however, to probe the depths of the Defense Department’s indifference to public health and safety:

ProPublica reviewed the open burns and detonations program as part of an unprecedented examination of America’s handling of munitions at sites in the United States, from their manufacture and testing to their disposal. We collected tens of thousands of pages of documents, and interviewed more than 100 state and local officials, lawmakers, military historians, scientists, toxicologists and Pentagon staff. Much of the information gathered has never before been released to the public, leaving the full extent of military-related pollution a secret. …. (Italics added)

“They are not subject to the kind of scrutiny and transparency and disclosure to the public as private sites are,” said Mathy Stanislaus, who until January worked on Department of Defense site cleanup issues as the assistant administrator for land and emergency management at the EPA.

ProPublica’s examination suggests that the Department of Defense has used an array of bureaucratic tools to shorten the list by almost any means legally available ever since Congress directed it to fix its contaminated sites. The agency also has for decades lobbied Congress for legislation that would make the military exempt from the nation’s most significant antipollution laws — the very laws that compel it to clean up old bases in the first place, and has fought to steer the science that determines how some of the most poisonous contaminants are regulated.

It is depressing to note that such DoD resistance to following the law and protecting the health of their employees and their families — and the surrounding public —  is a recurrent theme. In 2011, POGO reported on Toxic Secrecy: The Marine Corps’ Cover-up of Water Contamination at Camp Lejeune, and a broad array of non-profit organizations allied to fight a attempt under the auspices of the National Defense Authorization Act (since attempted on a regular basis) to to exempt from disclosure under the FOIA “information on military tactics, techniques, and procedures, and of military rules of engagement.” Just about anything they want to keep secret, in other words.  A coalition letter addressing the latest attempt is here.