Justice for Some

Noticeably absent from any of Webster’s numerous definitions of "Justice" is any mention of favoritism.  In fact, if you used the following definition of justice: "The quality of being just, impartial, or fair," favoritism could almost be considered an antonym of Justice.  That said, you almost can’t help but laugh at the irony of the Department of Justice receiving two letters on Wednesday from Senator Claire McCaskill, questioning whether or not favoritism played a role in the allocation of two of their FY 2007 competitive grant programs.

Those letters were announced in a press release which questioned the competition, or lack thereof, of both the Juvenile Justice and Delinquency Prevention Grant Program and the Edward Byrne Memorial Discretionary Grant Program. The former grant program has received a fair amount of attention already, Youth Today published a great story documenting the seemingly arbitrary nature in which OJJDP Director Robert Flores awarded the Juvenile Justice grants.  That story led to a subsequent letter of inquiry (pdf) from Representative Waxman to the Office of Juvenile Justice and Delinquency Prevention.

However, prior to McCaskill’s letter (pdf), the latter Edward Byrne Memorial Discretionary Grant Program had not received any public scrutiny to the best of my knowledge.  Although the Byrne Discretionary Grant Program has flown under the public radar, it has been something that POGO has been looking into for the past couple of months.

POGO is eagerly awaiting the Department of Justice’s response to Senator McCaskill’s letter regarding the Byrne Discretionary Grants.  If, in fact, it turns out that those grants, like the OJJDP grants, were awarded through favoritism rather than competition, it would raise some serious questions about the competitive grant process in general at the Department of Justice.

-- Jake Wiens

Note: If there are any FY 2007 Edward Byrne Memorial Discretionary Grants Program applicants that have anecdotal evidence of grant mismanagement, please call Jake Wiens at (202)-347-1122.

Congress Halts Oil Reserve Program, Opens Window for Reforms

Recent action by Congress to halt oil shipments to the Strategic Petroleum Reserve offers a great opportunity for government to reassess this troubled program. The legislation by Representative Peter Welch (D-VT) that overwhelmingly passed in Congress on Tuesday will stop the fill program until the end of this year. Although the President has ardently opposed similar measures in the past, he has already stated that he won't veto the bill.

Energy experts tend to agree that placing oil headed for the reserve back into the market will have a minimal effect on lowering gasoline prices. In real terms, it amounts to only 77,000 barrels a day out of the projected 86.8 million barrels that the world will consume each day this year. As an attempt to counter high gas prices, it is most likely a symbolic gesture.

However, there are other concerns about the fill program besides its effect on gas prices. Several Congressman - notably Rep. Welch, Senate Energy Committee Chair Jeff Bingaman, and Senate Investigations Subcommittee Chair Carl Levin - have opposed filling the reserve when oil prices are at record highs because doing so costs more for taxpayers.

The Government Accountability Office agrees with them. It has stated repeatedly, most recently in testimony to Congress last month (pdf), that the fill program should use a "steady dollar value" standard instead of a "steady volume" one. This would mean that the Department of Energy would fill the reserve when oil prices are relatively low and use heavy crude instead of higher-priced light, sweet crude.

Internal problems with the program have also been discovered. The reserve uses royalty oil received by the Department of Interior from offshore drillers in the Gulf of Mexico. This royalty oil is transported from oil rigs to onshore marketing centers, where it is then swapped out for higher grade oil that the Department of Energy then deposits in the reserves.

In a January audit report (pdf), the Energy Inspector General found that poor recordkeeping of this process had resulted in discrepancies between the barrels of oil that Interior had agreed to ship and the barrels that Energy had actually received. For a four-month period in 2005, this amounted to 308,000 missing barrels. The Inspector General was ultimately able to account for 276,000 of these, but its findings demonstrated that serious flaws existed in the fill program.

Likewise, a source within Interior has told POGO that similar discrepancies exist for royalty oil shipped from offshore rigs to onshore marketing centers. The source found that less oil was reaching the marketing centers than originally intended. The Interior Inspector General has stated that it will soon launch an investigation into Interior's side of the fill program.

The question is this: How many total barrels have gone missing and how much of a loss does this amount to for taxpayers?

Finally, the Government Accountability Office has argued that relying on royalty oil to fill the reserve may not be the best option. Its April testimony to Congress concluded (pdf):

Purchasing oil to fill the SPR--as DOE did until 1994--is likely to be more cost-effective than exchanging oil from the royalty-in-kind program for other oil to fill the SPR. The latter method adds administrative complexity to the task of filling the SPR, increasing the potential for waste and inefficiency.

Now that Congress has voted to halt the fill program, they and the affected agencies should take a harder look at it, with an eye towards ensuring transparency and minimizing costs to taxpayers. Then once the program resumes next year, it will be an improved one.

-- John Pruett   

Six Degrees of Scott Bloch: A Scandal Scorecard

Govexec.com has put together a fascinating cheat sheet for all of us who are following the unfolding Bloch story. They describe it as a "handy guide" to keep track of the administration officials who have "become ensnared in an interlocking set of investigations into allegations of Hatch Act violations, whistleblower misconduct and other prohibited personnel practices." Highly recommended, but be sure to follow the numbers on the scorecard so that you get the story in its proper order.

-- Beth Daley

Bizarro World

We admit that when we first saw the piece in FCW.com Monday lauding former GSA administrator Lurita Doan and excoriating the (unnamed) Inspector General who had supposedly brought her down, we just chuckled and moved on.

But on second thought…maybe there really are people out there who believe this kind of tripe!  Who actually think Doan was the brave little David battling the big bad Goliath.  On the off-chance that Neal Fox is not the only person residing in this alternate universe, we offer a brief recitation of actual facts.

Fox, former assistant commissioner of acquisitions at GSA, does not mince words.  Doan battled "IG arrogance" and "fought a trend in which IGs have usurped authority that rightfully belongs to agency leaders."

Ahem.  What authority that rightfully belonged to her?  Was that the authority to pursue bad contracts that bilked the taxpayer?  As Sen. Chuck Grassley (R-IA) stated in reference to one egregious case, that of Sun Microsystems: GSA senior officials "put pressure on the contract officer to sign a potentially bad contract.  All the evidence suggests that this particular contractor had been overcharging the government for years."

GSA IG Brian Miller's original sin was apparently to point out that Sun had overcharged the federal government by more than $25 million dating back to 1997.  Although Grassley chastised Miller for taking too long to complete the audit and for producing reports that were "incomplete, poorly organized and lacked basic information," he supported the IG's conclusions that Sun had overcharged the government.

Another charge from Fox was that "IGs have become a threat to good government by deterring innovation, causing agencies to institutionalize inefficiencies and interfering with their core missions.  IGs have shown again and again how they can get their way by public arm-twisting and underhanded tactics."

In fact, during POGO's ongoing review of the IG system, we have found that innovative ideas on how to tackle continuing management challenges often emanate from the IG's office, even while the IGs resist becoming an arm of management.  If they must occasionally go public--whether in the press or on Capitol Hill--to bring attention to their findings and recommendations, so be it.

With Doan gone, Fox agonizes, we are left with "another setback for good government at the hands of IGs."  But at least, he consoles himself, the IGs have sustained some blows--"their tactics were exposed, and their abuse of power sent a shockwave through the government."

Let's talk about the kind of "good government" that Lurita Doan brought with her during her tumultuous tenure.  She arrived at GSA in May 2006, and, according to the Washington Post: "Soon after Doan was nominated to lead the GSA this spring, she promised outside vendors that she would make contracting with the agency much easier for both government bureaucrats and corporations.  After she assumed the post, she began trimming the budget proposal of the inspector general's office.  She wrote in her annual report that the office's budget and staff had 'grown annually and substantially' in the past five years."  The Post added that in fact the number of employees had only increased from 297 to 309 from 2000 to 2006.

Doan not only proposed slicing the IG's budget by $5 million, she also wanted to shift responsibility for contract reviews to small private contractors.

Doan became infamous for referring to Miller as a terrorist, for engaging in prohibited personnel activities, and for declaring virtual war on anyone who crossed her, including Members of Congress.

Fox's single most appalling statement, however, was when he noted with approval that:  "Other agencies, such as the CIA, began to push back on their own IGs.  That is a start."

In fact, the CIA director was strongly criticized for launching an unprecedented "review" of the activities of the CIA OIG.  Ultimately an "ombudsman" was established within the OIG to make nice-nice with a group of officers that has become a de facto union.  The CIA situation appeared regrettable on its face.  It would be completely unacceptable if other agencies took even baby steps in the same direction.

The legendary Sherman Funk, an early IG at the State Department, noted that being an IG is like "straddling the barbed wire fence."  The statute clearly requires the IGs to report to both their agency heads and the Congress; never a comfortable position.  But the statute further makes clear that IGs fall under only the "general supervision," not the day-to-day supervision, of their agency chiefs.  The law specifies that the chief can delegate that supervisory power only to his second in command.  And finally, Justice Clarence Thomas, one of this administration's favorite judges, has held that such "general supervision" really amounts to "nominal supervision."

We don't need to be unthinking cheerleaders for the IG community to say that letting a Neal Fox run amok through their chicken house doesn't help anybody--least of all the U.S. taxpayer.

-- Beverley Lumpkin

A Deafening Silence on Government Reform

Although we've been inspired by some of the proposals offered by the presidential candidates, there has been almost no meaningful discussion of late about the systemic problems that are plaguing the federal government.  In yesterday's Politico, Professor Paul Light--author of a seminal study looking into one of our favorite topics, the federal Inspector General system--argues that if the next president does not put forth any ideas for fixing the federal government, he or she might be facing a "string of meltdowns that will make the federal response to Hurricane Katrina look like a minor mistake."

In making the case that the government is "perilously close to the breaking point," Professor Light cites a number of problems that have been at the heart of our recent investigations, such as the decision to ground planes across the country following the release of an IG report showing that inadequate oversight by the FAA has led to the installation of substandard aircraft parts.  He also makes reference to an issue that we've been following for years: the "hidden work force of contractors and grantees that disguises the true size of government and diffuses accountability for what goes right and wrong."

Professor Light points to these and other disturbing trends as evidence that we might be heading toward a widespread "government meltdown" sometime in the near future.  As both parties begin gearing up for the general election in the fall, we can only hope that the candidates will heed POGO and Professor Light's advice by thinking more creatively about ways to improve government accountability.

-- Michael Smallberg

Livermore Lab Fails Recent Security Test

We hate to say, 'We told you so,' but when POGO released U.S. Nuclear Weapons Complex: Livermore Homes and Plutonium Make Bad Neighbors just two months ago, we recommended that the one ton of weapons-grade and weapons-quantity of plutonium and highly enriched uranium be removed from the Lawrence Livermore National Laboratory (Livermore Lab) within the next year because it cannot be adequately protected. Suicidal terrorists would not need to steal the material, DOE's most dangerous and expensive-to-guard special nuclear material (SNM); they simply could detonate it into an Improvised Nuclear Device on the spot. Roughly seven million people live within a 50 mile radius of Livermore Lab, a nuclear weapons facility located in the greater metropolis of San Francisco, CA, which poses the most significant security threat of any such facility in the U.S.

Now, TIME Magazine is reporting that in late April 2008, government mock terrorists tested Livermore Lab's security, and were able to defeat the protective force and gain access to their target-simulated SNM. After speaking with our sources on the ground at Livermore Lab, as well as at the National Nuclear Security Administration (NNSA), POGO has heard some of what happened. We are not that surprised by what we learned. 

One reason the Lab's protective guard force was not able to defend the bomb-making material is because the hydraulic lift on the vehicles used to deploy the Lab's Dillon Aero M134D guns, popularly known as the Gatling gun, did not work. Faced with pressure to demonstrate that the Lab could fend off a terrorist attack, in 2006 NNSA announced the deployment of this enormously lethal weapon capable of firing 4,000 rounds a minute with a military "kill-range" of one mile, but with an ability to kill up to two miles. Within the one-mile range of the Lab are two elementary schools, a pre-school, a middle school, a senior center, and athletic fields. This risk to the population, combined with analysis from Army Special Operations experts, underlies POGO's position that the Gatling is the wrong weapon for the site.

Another reason that the Lab's security was penetrated is that members of the Lab's SWAT team, known as a Special Response Team (SRT), have not trained together as a "team" for years. This goes against law enforcement best practices--guards need opportunities to see how their teammates actually communicate and respond during an emergency.   

POGO is pleased that NNSA Principal Deputy Bill Ostendorff seems to be taking this recent security lapse quite seriously, including raising "a number of areas that require immediate attention," with the Board of Governors of Lawrence Livermore National Security, LLC (LLNS),the private contractor who manages the Lab. However, additional training or gadgetry will not change the fact that the Lab is located in a growing residential community-there are now housing developments that sit only 300 yards from Building 332 (the Superblock), which houses the Lab's plutonium and highly enriched uranium.  Livermore Lab can never be a safe place to store SNM for the weapons complex.

We hope that this incident sounds a loud warning bell on Capitol Hill about the need to include language in upcoming appropriations bills that pressures NNSA to remove SNM from Livermore Lab by March 2009, a date that POGO determined after researching whether NNSA has adequate containers, transport, and space at other sites. After releasing our report in March, POGO has been disappointed to learn during meetings with congressional staffers that they are comfortable with NNSA's commitment to remove the material by the end of 2012.  Now is the time to secure this large homeland security vulnerability.

Be sure to check out our press alert and YouTube video (see below) on the security weaknesses at Livermore.

-- Ingrid Drake and Peter Stockton

Less Alphabet Soup, Maybe, but Less Transparency

Back in January we wrote about the pending new rules for federal agencies for control of information considered sensitive but not classified.  We were told that the purpose of the new policy was to ease information-sharing between agencies, most particularly information related to terrorism.  Some of our brethren were perhaps over-optimistic in hoping the new rules would make more info available to the press and public.

Yes, we admit that even we briefly dared to hope.  But our cranky skepticism seems to have been justified.  Now the blogger smintheus  has called to our attention the White House memo to all heads of agencies and departments on the designation and sharing of what had previously been called SBU for Sensitive But Unclassified Information.  The new rules were finally issued on Friday while most of the White House was giddy with wedding doin's down at the ranch.

What's disappointing, if not entirely surprising, is that the Friday memo does not seem to follow either the letter or the spirit of earlier testimony by the administration's Program Manager for the ODNI Information Sharing Environment, Amb. Ted McNamara.  Calling the current situation "unacceptable," McNamara had pointed out that the category of unclassified but regulated information had grown haphazardly and was treated differently at virtually every federal agency.  He told the House Homeland Security Subcommittee on Intelligence in April 2007:  "Among the twenty departments and agencies we have surveyed, there are at least 107 unique markings and more than 131 different labeling or handling processes."  McNamara had indicated that he thought a large amount of government information would become releasable.

Clearly something needed to be done to rationalize the situation.  McNamara proposed, and the White House has now accepted, that henceforth all such info will be referred to as Controlled Unclassified Information (CUI).  As smintheus aptly points out, already we have the presumption that the information will be "controlled."

The definition of CUI could not be more amorphous: info that is "pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government."  You can see that almost any factoid could be massaged to fall into that category.  As smintheus pointed out, what could be more vague than "pertinent"?

Under the memo's taxonomy, CUI would be treated according to the amount of protection and handling needed.  The designations are based on whether it needs "Standard" or "Enhanced" Safeguarding; and "Standard" or "Specified" Dissemination.  That means there will be three categories: Standard/Standard; Standard/Specified; Enhanced/Specified.  (It was determined that Enhanced Safeguarding with Standard Dissemination would violate logic.)

Steve Aftergood points out in his Secrecy News today that "the new policy will do nothing to restore public access to government records that have been improperly withheld…To put it another way, the CUI policy does not exclude anything that is currently controlled as Sensitive But Unclassified.  This is a disappointment in light of previous suggestions that wholesale disclosures of currently controlled unclassified information might ensue."

Although the first paragraph of the White House memo declares that the purpose of the new rules is "to standardize practices and thereby improve the sharing of information, not to classify or declassify new or additional information," we fear the actual practice will be to remove from public view vast new categories of government information.

We are also disappointed because the Open Government community had previously written to the White House, asking for a public comment period, but that has not been provided in this memo.  Again, we know we're old-fashioned, but we think the public should have at least some say in how their information is handled.

-- Beverley Lumpkin

Toni Locy's "Day in Court"

A miserable rainy day at the federal courthouse in D.C.--but there may have been a parting of the clouds hanging over former reporter Toni Locy.

In front of a large crowd in the cavernous ceremonial courtroom in the courthouse, attorneys for Locy argued before an appeals court panel of the D.C. Circuit that a lower court judge's ruling against Locy should be thrown out.

Federal Judge Reggie Walton had ruled that Locy would have to pay $5,000 out of her own pocket for refusing to identify sources for stories she had written about the 2001 anthrax attacks that had identified former Army scientist Steven Hatfill as a possible suspect.

Locy had told Walton that she couldn't remember whom she had talked to about the stories, and so he ordered her to divulge the names of every person she ever talked to at the Justice Department or U.S. Attorney's Office.  When she refused, he imposed the $5,000 fine, with the additional and incredibly punitive directive that no one else, including her former newspaper, could help her pay the fines.  As she told Boston Globe columnist Kevin Cullen, "Nicky Scarfo can have a defense fund, Scooter Libby can have a defense fund.  But I can't have a defense fund."

The issue arose because Hatfill is suing the Justice Department for violation of privacy (former Attorney General John Ashcroft memorably set off a furor when he publicly termed Hatfill "a person of interest" in the anthrax investigation) and his attorneys wanted reporters who had covered the case to reveal their sources.  Locy was not the first reporter to write about Hatfill, and she has said she can't recall now who told her what for the story; it was not a personal scoop so it doesn't loom large in her memory.  She was working for USA Today at the time, and had previously covered legal issues for AP, The Washington Post, the Boston Globe, and the Philly Daily News.

Locy is now teaching journalism at West Virginia University, but she was a tough reporter during her days at the DC Courthouse, a tiny but determined figure who always had a perfect manicure and somehow managed to wear stiletto heels every day.  But you always knew she was from Pittsburgh; she always made me think of the Roz Russell character in the classic Chicago newspaper movie, "The Front Page." A profile in the American Journalism Review of April/May quoted me at length describing in admiration what a tough competitor she was.  I bring this up because everyone else who covered those beats with her is conflicted, unable to discuss her case, although they ache for her.

After today's hearing, I talked to one of those colleagues and friends, who told me that the AP story is accurate; the three appeals court judges did express a high degree of skepticism and even exasperation that Hatfill's team was pushing so hard for Locy's sources, when they've already asked for a trial date, proving they're ready to go to trial and think they can win.  The appeals court judges also pointed out that Judge Walton had failed to perform the usual and required balancing test between the public interest and the individual's rights.  My source said Judge Douglas Ginsburg even seemed a bit contemptuous of Hatfill's argument, basically asking them, why are you wasting our time?

Among those in the courtroom, and who surrounded Locy afterward, as she stood there in her flaming red suit and (yes) red stiletto heels, were three former colleagues from her Boston Globe days who had traveled down by train to offer moral support.

Reached by phone, Locy told me, "I was very impressed with the questions that the judges asked.  I thought they had a great command of the facts in the case.  I appreciate that they gave me my day in court."

Locy spent yesterday on Capitol Hill, meeting with staffers regarding the pending shield law, for which she has become the number one poster child.  POGO shares the concerns of all journalists in this matter; the judge actually said he hoped his actions would stop ALL government employees from talking to reporters.  That would certainly affect us at POGO, too, but this is really a subject of central importance to all who care about a thriving democracy.  Remember, it was Thomas Jefferson who said he'd rather have a free press without a government than the other way around.

-- Beverley Lumpkin

POGO's Beverley Lumpkin to Appear on Federal News Radio

Just wanted to give everybody a quick heads up that POGO's Beverley Lumpkin is scheduled to appear on Federal News Radio (WFED) this morning at 11:00 a.m.  The interview will be broadcast live on radio station 1050 AM, and also online at http://federalnewsradio.com/?nid=249.

-- Michael Smallberg

All Thumbs

A fascinating new angle on the Scott Bloch story has just been broken by Ari Shapiro on NPR.  Shapiro is reporting that part of the search warrant served on Bloch on Tuesday included a physical search of Bloch himself in order to seize his computer thumb drive.  In fact, the agents seized two thumb drives from him, according to Shapiro's and POGO's sources.

Shapiro further reports that before having his hard drive "scrubbed"€ by Geeks on Call a couple of years ago, Bloch first downloaded certain files onto the thumb drives.  He has said he had the computers' hard drives erased in order to get rid of a virus.

If Bloch is found to have lied to investigators--whether FBI agents, OPM Inspector General investigators, or staffers of the House Committee on Oversight and Government Reform who interviewed Bloch earlier this year--then it's possible he could become the latest example of that old Washington adage that it's always the cover-up that gets you in the end.

-- Beverley Lumpkin