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., 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…”

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

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?

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

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

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.”