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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Walking Across the Line? Sidelining the Courts’ Review of Agency Actions

Language restricting judicial review has been included by conservative legislators in 28 House and Senate bills this Congress (at least 13 of which explicitly involve environmental issues).

As reported in E&E Daily, bills to reform the judicial system or restrict judicial review of agency actions are hardly a new phenomenon in Congress: several of the bills proposing changes in the broader legal system passed the House mostly along party lines during the Obama administration but stalled in the Senate and never made it to the president’s desk.

Judiciary Chairman Bob Goodlatte (R-Va.) has led the effort on the House side. According to Reilly, since the beginning of 2017 his committee has approved at least 10 pieces of litigation under a judicial reform agenda, including bills that would:

  • impose mandatory sanctions on attorneys who file “baseless” lawsuits;
  • set restrictions on groups of people who can file class-action lawsuits;
  • bar settlement dollars from going to third parties;
  • move certain cases against corporations from state to federal courts; and
  • “counter” ‘sue and settle’  — through which, GOP critics say, special interests sue friendly agencies in order to force them to issue new regulations.

In January, Senate Judiciary Chairman Chuck Grassley (R-Iowa) introduced a companion bill to the House’s sue-and-settle legislation.

Read here for more specifics about the bills.

New FBI final rule — the biometrics we have on you are none of your business & not subject to the Privacy Act

On August 1, the FBI issued a “final rule to amend its Privacy Act exemption regulations for the system of records titled, “Next Generation Identification (NGI) System,” JUSTICE/FBI-009, last published in full on May 5, 2016. Specifically, the FBI exempts the records maintained in JUSTICE/FBI-009 from one or more provisions of the Privacy Act. The FBI asserts that “[t]he listed exemptions are necessary to avoid interference with the Department’s law enforcement and national security functions and responsibilities of the FBI.”  The final rule is effective on August 31.

The FBI’s Next Generation Identification system stores the biometric records of people who have undergone background checks for jobs, volunteer positions and military service, as well as of those who have criminal records.  The new rule will prevent millions[1] of people from finding out if their fingerprints, iris scans and other biometric information are stored in a massive federal database. The rule asserts that this is because it could “specifically reveal investigative interest by the FBI or agencies that are recipients of the disclosures.”

Moreover, according to the final rule, because most of the criminal records in the NGI System are obtained from state and local agencies at the time of arrest, the FBI cannot always collect information directly from the individual and “[i]t is not feasible” to notify them that their records are being included.

Jeramie Scott, EPIC’s Domestic Surveillance Project director, told Nextgov that a person might become the subject of investigation without being notified because that person’s image may be erroneously called up in a search for a different individual.

[1] Electronic Frontier Foundation estimated in 2014 that it could contain up to 52 million facial images by 2015.

“State of Emergency” — Is the US walking slowly across the line?

writes in Just Security that the United States is already being ruled under a state of emergency. “It began under President George W. Bush and continued under President Obama. President Trump just has to ice the cake.”

She notes that ‘when people think of emergency rule, they usually picture Hitler’s declaration in Germany after the Reichstag fire or Colombia, which spent 37 out of 40 years in a state of emergency from 1952 to 1992. But Colombia got a new constitution in 1991, as did Germany after World War II.”

But these are exceptions, because “Their experience with severe emergency actually created a strong public reaction against the experience that helps to safeguard these countries.”

Kleinfeld points to a series of emergency cases compiled by the International Commission of Jurists from around the world, out of which Kim Lane Scheppele, has compiled “an ’emergency script’ that gets trotted out nearly every time, with remarkable stability in the actions and their order in various countries. Emergencies aren’t usually declared at the outset with a capital E – instead, they walk across the line slowly.

In the early stages of emergency, legislatures and publics pay attention – no one wants to let democracy erode too much. But then, they get used to things. What was exceptional becomes normal. It gets normalized in ordinary law, which sets a new benchmark.”

Kleinfeld points to a recent example: “the U.S. Congress was careful to insert a five-year sunset clause into the Patriot Act. Five years later, Congress removed the clause and made fourteen of the sixteen clauses permanent.”

Following the  “slow creep starts when the Executive branch slowly centralizes power:

Gradually, the courts are marginalized; this is often not abrupt, and the main actor isn’t always clear:

Over time, legislatures and courts both take themselves out of the loop and choose to opt out of the most political decisions, rather than being pushed by the Executive.

Militarization comes next, in that the military starts to perform jobs formerly done by civilians. Under President Obama, our nation’s cyber security was placed under military control, so that civilian sites had no governmental watchdog or protection, while all effort focused on protecting the .mil and other security domains. Trump’s placement of military brass in what are normally high-level, civilian positions is more public, but possibly less dangerous.

Other actions follow, such as reducing the openness of government to free information flow.

Banning assembly is another common tactic. Consider the bevy of  anti-protest bills being considered by 18 states that make it harder to protest, create harsher penalties for arrested protestors, and in two cases, remove liability from drivers who accidentally hit protestors.

Procedural shortcuts such as governing through executive orders are another step.

Counter-intuitively, executive orders and Presidential memoranda were most used when partisanship in Congress was at its lowest point in the middle of the century, according to The American Presidency Project (cited by Kleinfeld). In recent administrations, Obama issued fewer than George W. Bush who issued fewer than Clinton who issued fewer than Reagan.

“Deconstructing” the Administrative State – Part Two

In a post explaining what conservatives mean by the ‘deconstructing’ phrase — and why they are so excited by the Trump administration’s personnel choices — Jonah Goldberg wrote on National Review (in February 2017):

Deconstructing the administrative state is a kind of nightingale’s song for many intellectual conservatives, particularly my friends in the Claremont Institute’s orbit. It’s been great fun watching mainstream journalists, who are not fluent in these things, talk about the administrative state as if they understand what Bannon means. The “administrative state” is the term of art for the permanent bureaucracy, which has come untethered from constitutional moorings (please read Phillip Hamburger’s Is Administrative Law Unlawful?, or Charles Murray’s By the People..). Most of the law being created in this country is now created on autopilot, written by unelected mandarins in the bowels of the government. It is the direct result of Congress’s decades-long surrender of its powers to the executive branch. The CIA is not the “deep state” — the FDA, OSHA, FCC, EPA, and countless other agencies are.

Goldberg goes on to note that “… any attempt to simply move the unlawful arbitrary power of the administrative state to the political operation of the West Wing will not be a triumph for liberty, it will simply amount to replacing one form of arbitrary power with another.”

Which, for me, raises the question if the power of the unelected corporate mandarins now taking over the Executive Branch is less “abitrary”?  Or less driven by “favored groupsand not imposing “heavy economic, political, and social costs onthe unfavored public?

Patrice McDermott


Amendment to Gut CBO — Make those unacceptable swamp numbers slow and unusable

Update The House Rules Committee is allowing the Griffith amendment to move to the floor for debate and a vote.

On July 24, Congressman Morgan Griffith (R-VA), along with Congressmen Jim Jordan (R-OH), Mark Meadows (R-NC), and Scott Perry (R-PA), submitted to the Rules Committee an amendment to abolish the Budget Analysis Division of the Congressional Budget Office (CBO) and transfer its duties to the Office of the Director.  The amendment was made to the Make America Secure Appropriations Act of 2018, through the use of the Holman Rule.  A separate amendment filed by Rep. Mark Meadows (R-N.C.) would also eliminate the same division and specify that the CBO instead evaluate legislation “by facilitating and assimilating scoring data” compiled by four private think tanks — the Heritage Foundation, the American Enterprise Institute, the Brookings Institution, and the Urban Institute.

During a Monday appearance at the National Press Club, Rep. Mark Meadows (R-NC), chairman of the Freedom Caucus, said “There’s plenty of think tanks that are out there. And so we ought to take a score from Heritage, from AEI, from Brookings, from the Urban Institute and bring them together for a composite score that would represent a very wide swath of think tanks and their abilities. We think that’s a pragmatic way to use the private sector and yet let Congress depend on a score that is accurate.”

During the first week in January, House Republicans reinstated the Holman Rule, an arcane procedural rule that empowers any member of Congress to propose amending an appropriations bill to single out a government employee or cut a specific program. It was first enacted in 1876 and rescinded in 1983, and was reinstated in January on a temporary basis.


Temporary restraining order and preliminary injunction denied – no Privacy Assessment of Trump Voter Fraud Collections

According to a report by Josh Gerstein of Politico,  U.S. District Court Judge Colleen Kollar-Kotelly denied a temporary restraining order and preliminary injunction the Electronic Privacy Information Center sought against the panel formally known as the Presidential Advisory Commission on Election Integrity. EPIC sought to force President Donald Trump’s controversial voter fraud commission (formally known as the Presidential Advisory Commission on Election Integrity) to conduct a privacy assessment before gathering data on millions of American voters.

The panel initially asked states to upload that data to a site hosted by the Defense Department, potentially implicating federal laws covering executive branch agencies. The panel is now having the information collected by the White House itself (see Trump voter commission to store data on White House computers under Pence staff direction), effectively avoiding the impact of those federal statutes.

In a 35-page opinion Monday, Kollar-Kotelly said the commission and a White House information technology office did not appear to qualify as federal agencies and therefore did not trigger the requirement for a privacy impact assessment: “Given the factual circumstances presently before the Court—which have changed substantially since this case was filed three weeks ago—Defendants’ collection of voter roll information does not currently involve agency action.”

The opinion states: “Defendants have represented that they are only collecting voter information that is already publicly available under the laws of the states where the information resides; and Defendants have clarified that such information, to the extent it is made public, will be de-identified. All of these representations were made to the
Court in sworn declarations, and needless to say, the Court expects that Defendants shall strictly abide by them.”

Kollar-Kotelly also noted that “to the extent that factual circumstances change – for example, of the de jure or de facto powers of the Commission expand beyond those of a purely advisory body – this determination may need to be revisited.”

Creation of New Secrets Drops in 2016 — But is All the News Good?

Appreciation to Steven Aftergood for his July 20 Secrecy News blog on the Annual Report to the President of the Information Security Oversight Office (ISOO).  Steve is the indispensable source for cogent analysis of national security (and other) information and this post draws on that.

The Good News
Designation of New Secrets at Record Low: The ISOO reports that, in 2016, 39,240 “original classification decisions” (new secrets) were generated.  As Aftergood notes, this is an all-time low: by comparison, more than 230,000 new secrets a year were being generated a decade ago. And, indeed, from1980 – when this record-keeping began — to 2012, the total number never dropped below 100,000.  Even given the caveats below, the record low level is likely to reflect a real reduction in the scope of national security secrecy in the Obama years.

Caveats: And, yet, Aftergood notes “the reported reduction in new secrets cannot bear too much interpretive weight. The figures cited by ISOO represent a compilation of dozens of estimates provided by individual agencies, based on sampling methods that are inconsistent and not always reliable.”  Still, one can assume “that the uncertainties and the ambiguities in the data have been more or less constant over time.”

Critically, “this statistical approach to secrecy oversight implies that all classification decisions are of equal significance. In actuality, some secrets may be of profound importance — politically, morally, historically, or otherwise — while many other secrets (such as administrative or technical details) will have little or no public policy interest.”

Classification Challenges: Decisions to classify information often involve subjective judgments about the requirements of national security and the potential of particular information to cause damage, leading to disputes inside the government. Authorized holders of classified information who believe that the information is improperly classified, can file classification challenges within the system. As Aftergood points out, “If such challenges could be promoted and accepted as a routine element of classification practice, they could serve to invigorate classification oversight and to provide an useful internal self-check.”

ISOO reports 954 such classification challenges in 2016 — about the same number as in 2015. Of these challenges, 684 (71.70 percent) were fully affirmed at their current classification status with 167 (17.50 percent) being overturned either in whole or in part, and 103 (10.80 percent) challenges remaining open. Aftergood notes that this compares to over 40% that were overturned in 2015.

According to ISOO, the Department of Defense (DoD) historically reports the largest number of formal classification challenges, the majority of which (496) come from the U.S. Pacific Command. Only a single one emerged from the Department of Justice

Caveats: ISOO found that about a quarter of all agencies do not even have a classification challenge program, though they are supposed to.

The Bad News

Derivative Classification Increase and Data Accuracy Questionable:  Executive branch agencies reported 55,206,368 derivative classification decisions; a 5 percent increase from FY 2015. ISOO notes, not for the first time, that the data concerning derivative classification continues to be problematic for agencies to capture and ISOO to analyze accurately. Agencies estimate the number of these decisions based on established sampling methods.

Classification Costs at a Record High

According to ISOO, the annual costs incurred by the classification system reached record high levels in 2016: “The total security classification cost estimate within Government for FY 2016 is $16.89 billion,” ISOO reported, compared to $16.17 billion the year before. Classification-related costs within industry were an additional $1.27 billion.”

The Mixed News

ISOO director Mark A. Bradley, whose tenure as director began this year, told the President that in the next reporting cycle, “ISOO will focus on improving our methodology in data collection and will begin planning and developing new measures for future reporting that more accurately reflect the activities of agencies managing classified and sensitive information.” Regrettably, this is a commitment also made previously in a better budget (and possibly political) climate: on May 23rd, the Administration released a Presidential Budget Request for Fiscal Year 2018 that would cut funding for the National Archives and Records Administration by $16.6 million.