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

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

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

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

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

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

The problem for accountability is that

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

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

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

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

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

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

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

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

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

 

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.

 

 

Consolidating classified presidential records in DC raises concerns

In Secrecy News, 5 Mar 2018, Steven Aftergood reported on a letter sent out by William J. (Jay) Bosanko, NARA’s COO, announcing NARA’s “intent to consolidate all of the classified records in the Presidential Library system in the Washington, DC area. This follows our previous consolidations of all other classified records that were previously maintained in the field.” Steve asks in the blog—and in a question he put to Mr. Bosanko—whether it really is necessary to physically move the records to DC in order to declassify them? In his email reply, Bosanko noted that the question
“comes back to age-old issues around declassification authority and third-agency referrals.  … And, bringing them here makes it much easier to address long-standing challenges such as certain topics that cut across more than one Administration.”
Given the resistance of the intelligence agencies, in particular the CIA, in letting “their” records be declassified. and a specific history of removing records from NARA—

Washington, D.C., February 21, 2006The CIA and other federal agencies have secretly reclassified over 55,000 pages of records taken from the open shelves at the National Archives and Records Administration (NARA), according to a report published today on the World Wide Web by the National Security Archive at George Washington University. Matthew Aid, author of the report and a visiting fellow at the Archive, discovered this secret program through his wide-ranging research in intelligence, military, and diplomatic records at NARA and found that the CIA and military agencies have reviewed millions of pages at an unknown cost to taxpayers in order to sequester documents from collections that had been open for years.

At issue then, and a possibility now, is that the IC agencies assert ‘equities’ in records not created by them.

An “equity” is information that was originated, classified by, or concerns the activities of another government agency or organization and only they can declassify it. Records that contain other agency “equities” must be referred to those agencies for declassification review.

A referred record becomes declassified upon final declassification action by the referring agency based upon the results of the other agency reviews, or automatically without benefit of additional review if not acted upon by those agencies within a specific time frame and after appropriate referral notification.

President Obama’s 2009 Executive Order 13526 created a National Declassification Center (NDC) at NARA and specifies that ‘If an agency fails to provide a final determination on a referral made by the Center within 1 year of referral, or by the centralized facilities referred to in section 3.7(e) of this order within 3 years of referral, its equities in the referred records shall be automatically declassified.”

It is potentially worrisome that the letter from Mr. Bosanko does not directly address the role to be played by the NDC and its responsibility for reigning in the endless foot-dragging on referrals undertaken by IC agencies.

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…

https://www.rcfp.org/sites/default/files/homefront-confidential.pdf

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.  https://www.justice.gov/oip/foia-guide-2004-edition-exemption-7f

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.”

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.