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.

 

 

Trump nominates person with no statistical experience to head Bureau of Justice Statistics, further threatening credibility of DOJ information

As reported in The Crime Report, the assault on the credibility of the Bureau of Justice Statistics continues:

President Trump has announced his intention to appoint a director of the Justice Department’s Bureau of Justice Statistics (BJS) who has no apparent experience in the field. … The only statistical experience cited by the White House in Anderson’s background was co-creating the Anderson and Hester Computer Rankings, which boast of computing college football’s “most accurate strength of schedule ratings,” taking into account the quality of teams’ opponents.

The Bureau was established in 1979 “to collect, analyze, publish, and disseminate information on crime, criminal offenders, victims of crime, and the operation of justice systems at all levels of government.”

Until 2012, the BJS directorship required Senate confirmation— when Congress changed the law and made the job a presidential appointment. According to Washington Bureau Chief, Ted Gest:

BJS directors under President Obama, James Lynch of the University of Maryland and William Sabol, now of Georgia State University, both were long-time criminologists and recognized experts in crime and justice statistics.

In May, under the auspices of the American Statistical Association, four former BJS directors wrote to Attorney General Jeff Sessions urging that “serious consideration” to head BJS, which operates in Sessions’ Department of Justice, “to individuals who have strong leadership, management, and scientific skills; experience with federal statistical agencies; familiarity with BJS and its products; visibility in the nation’s statistical community; ability to interact productively with Congress and senior DOJ staff; and acceptance of the National Academies’ Principles and Practices for a Federal Statistical Agency.”

The letter was signed by Lynch, Sabol, Jeffrey Sedgwick, who served as BJS director in the last three years of the George W. Bush administration and now directs the Justice Research and Statistics Association, and Lawrence Greenfeld, who headed BJS in the first five years of the Bush administration.

Anderson does not appear to have any of those qualifications.

The same four recent BJS directors wrote in May to leaders of the Senate and House Judiciary Committees arguing that the requirement for Senate confirmation for the BJS director should “be restored and that the director’s status be changed from serving at the will of the president to serving a fixed term of at least four years, staggered from the presidential election.”

The ex-directors said in their letter: “It is imperative that policy discussions about the often-contentious issues regarding crime and justice be informed by statistical data trusted by the public to be objective, valid, and reliable…”

“To ensure BJS data are viewed as objective and of highest quality, BJS must be seen as an independent statistical agency wherein data collection, analysis, and dissemination are under the sole control of the BJS.”

 

AG Sessions is a threat — to accountable government through reliable information

In late 2016,  the threat of the impending Trump Administration to access to reliable and accurate government information caused a number of academic libraries, data scientists and others to initiate Data Refuge focused on climate and environmental data. The Environmental Data & Governance Initiative (EDGI), another collaboration, is focused on potential threats to federal environmental and energy policy, and to the scientific research infrastructure built to investigate, inform, and enforce them. Its Capacity and Governance working group monitors changes to federal agency governance, budgets, enforcement, scientific research, and rulemaking capacity.i

At the time, openness advocates warned that the utility of government data could be easily undermined by not just being removed (or made difficult to find) but also by changes to the data fields. That warning has now proved true — but not in the areas that are being closely monitored by the above efforts. We have learned that it is not only the new leaders of environmental and energy agencies that are a threat to the accurate information needed to hold government accountable. FiveThirtyEight has documented that AG Sessions is yet another.

In late October, the site reported that “The First FBI Crime Report Issued Under Trump Is Missing A Ton Of Info“:

Every year, the FBI releases a report that is considered the gold standard for tracking crime statistics in the United States: the Crime in the United States report, a collection of crime statistics gathered from over 18,000 law-enforcement agencies in cities around the country. But according to an analysis by FiveThirtyEight, the 2016 Crime in the United States report — the first released under President Trump’s administration — contains close to 70 percent fewer data tablesI than the 2015 version did, a removal that could affect analysts’ understanding of crime trends in the country. The removal comes after consecutive years in which violent crime rose nationally, and it limits access to high-quality crime data that could help inform solutions.  …

Among the data missing from the 2016 report is information on arrests, the circumstances of homicides (such as the relationships between victims and perpetrators), and the only national estimate of annual gang murders.

While changes to the report typically go through a body called the Advisory Policy Board (APB), responsible for managing and reviewing operational issues for a number of FBI programs, these changes did not. Rather, the FBI Office of Public Affairs — rather than the Advisory Policy Board — determined which data tables to remove  based on a “review the number of times a user actually viewed the tables on the internet.”

So, can a concerned person or organization obtain the removed fields?  According to FiveThirtyEight,

While the UCR says that the data no longer included in the report was available upon request, the FBI only provided a raw data file, which is more difficult to analyze — especially compared to easily accessible data tables — and does not always match the figures posted online in the UCR reports.3

The FBI noted that in addition to its decision to streamline the report, UCR had launched a Crime Data Explorer, which aims to make crime data more user-interactive. But data contained in the explorer does not replicate what is missing from the 2016 UCR report, and it doesn’t allow users to view data for particular years, but rather aggregates trends over a minimum period of 10 years. The National Incident-Based Reporting System is another tool the FBI uses to provide more detailed information on crimes, but it too does not replicate what is missing from the 2016 UCR report and has a substantially lower participation rate4 from police departments across the country.

 

i The End of Term Harvest and subsequent EOT Web Archive also received intense new interest.The Web Archive contains federal government websites (.gov, .mil, etc) in the Legislative, Executive, or Judicial branches of the government — with a focus on websites that were at risk of changing (i.e., whitehouse.gov) or disappearing altogether during government transitions.

The ‘A’ in CIA does not stand for Accountability

Recently, the CIA has been in the news. This in itself is unusual and the contexts of the news stories makes it even more so.  None of the stories are good news for public accountability.

On October 17, Reuters reportedCIA says mistakenly ‘shredded’ Senate torture report then did not” according to Christopher Sharpley, the acting CIA Inspector General, during his confirmation hearing before Senate Intelligence Committee as President Trump’s nominee for the position.

Sharpley said the CIA received the report in December 2014 on a computer disk, which was then uploaded into a classified system. Shortly thereafter, he said, the agency was told to delete it because of ongoing Freedom of Information Act (FOIA) litigation.

An email was sent saying the disk should not be destroyed, but Sharpley said he was told months later it could not be found and that an employee said it had been shredded.

But he said the disk was discovered later, after the FOIA litigation concluded that the report was a “congressional” document not subject to FOIA requests.

Sharpley said around that time, (Senator Richard) Burr (chair of the Senate Select Committee on Intelligence), asked him to return the disk and he did so. (Emphasis added)

The timing is interesting….

Of course, Sharpley neglected to mention that the DC circuit ruled it was a congressional record for purposes of FOIA, and that the court explicitly said Burr’s letter was entitled to zero weight:

Before turning to an application of the law to the facts of this case, we must make it clear that we can give no weight to the letter sent by now-Senate Committee Chairman Richard Burr to the President in January 2015. The letter was sent after Appellants had submitted their FOIA request and after they had filed suit in the District Court. Therefore, the letter is a “post-hoc objection[] to disclosure,” and, as such, it “cannot manifest the clear assertion of congressional control that our case law requires.”

Sharpley also would not commit to protecting any future reports, such as one related to the committee’s probe of potential links between Trump’s campaign and Russian efforts to interfere in the 2016 U.S. election. This brought a rebuke from Senator Wyden:

“I think your highest duty here is to follow the law. The notion that the chairman asked for it and that’s all that governed your judgment isn’t acceptable to me.”

The above scenario is troubling enough. A POGO report the previous day—the day before the confirmation hearing—adds to the concerns.  As POGO points out, the Office of the Inspector General depends on whistleblowers to report waste, fraud, and other abuses. In the case of the CIA, however,

President Trump’s nominee to be the Central Intelligence Agency’s Inspector General—its top independent watchdog—is named in at least three open whistleblower retaliation cases.  …

Despite a statement POGO received from a senior Republican Senate staffer that Congress has a need-to-know: “There’s no question that information about outstanding retaliation cases involving Sharpley should be fully disclosed before members of Congress are asked to approve such a key CIA official,” POGO notes

It remains unclear whether Sharpley or the CIA has disclosed to Congress a complete list of the open matters, or any details concerning them. If not, Congress may still learn about them through other avenues: key members of a confirming committee are often provided any FBI files that contain details of cases involving the nominee, potentially including criminal or administrative matters. Such material, if it is available, is likely to be of interest for the Senate Intelligence Committee, which must examine Sharpley’s fitness for office, as well as to members of the Whistleblower Protection Caucus and of the full Senate, who will be required to vote on his confirmation.

The Committee has not yet voted on Sharpley’s nomination.

Moving from the IG to the Director’s office, on October 20, the Washington Post reported that, according to CIA Director Mick Pompeo,

“The intelligence community’s assessment is that the Russian meddling that took place did not affect the outcome of the election.”

As the Report states, however

This report includes an analytic assessment drafted and coordinated among The Central Intelligence Agency (CIA), The Federal Bureau of Investigation (FBI), and The National Security Agency (NSA), which draws on intelligence information collected and disseminated by those three agencies. It covers the motivation and scope of Moscow’s intentions regarding US elections and Moscow’s use of cyber tools and media campaigns to influence US public opinion. The assessment focuses on activities aimed at the 2016 US presidential election and draws on our understanding of previous Russian influence operations. When we use the term “we” it refers to an assessment by all three agencies.

We did not make an assessment of the impact that Russian activities had on the outcome of the 2016 election. The US Intelligence Community is charged with monitoring and assessing the intentions, capabilities, and actions of foreign actors; it does not analyze US political processes or US public opinion. (Emphasis added)

Greg Miller noted in the Post article that

“Pompeo’s mischaracterization of the intelligence report was the latest in a series of statements from the former Republican congressman that have seemed aimed at minimizing the significance of Russian interference in the 2016 election.”

Secrecy Setback for Government-funded/Corporation-run Prisons

An August post discussed claims by private prison companies that receive federal funding currently that they are exempt from Freedom of Information Act (FOIA) requests due to a loophole in the current law. On October 10, 2017, the US Supreme Court denied a petition by two private prison corporations, GEO Group and Corrections Corporation of America (recently rebranded as “CoreCivic”) seeking to block the release of government documents about their immigration detention practices.

The Center for Constitutional Rights (CCR) and the Detention Watch Network (DWN) brought a case in 2013, under the Freedom of Information Act (FOIA), to force the US government to release of  records on a “detention bed quota” that requires funding for 34,000 beds for detained immigrants “at any given time.” As the corporations are funded by the federal government and perform a government function, the records are held by the government, not the corporations. A federal district court ruled in July 2016 that the government must release details of its contracts with private prison corporations.

The government chose not to appeal. The country’s two private prison corporations, however, intervened to appeal the decision to the Second Circuit Court of Appeals, which dismissed their petition in February. GEO then petitioned the Supreme Court for a full review of the case, asking for the right to prevent the government from releasing information under the FOIA.

The Supreme Court’s decision lets stand the February ruling by the Second Circuit Court of Appeals, putting an end to the private contractors’ attempt.

On Tuesday, Mary Small, policy director of Detention Watch Network, said

Today’s decision by the Supreme Court has finally put an end to private prison contractors’ relentless attempts to keep their secrets buried. Private prison contractors have a long history of hiding profiteering schemes and covering up deadly abuses in immigration detentions. With this decision, the Supreme Court has signaled agreement that private prison contractors must not act with impunity and dictate government secrecy. This victory is especially important as we face a presidential administration committed to mass privatization as well as mass detention and deportation.

 

A Possible Step Forward on Defense Department Declassification

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.

Counting (Some of) the Costs of War

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…”