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

Lame Duck Makes Lots of Noise

In an obscure section (p. 239, Sec. 519 of the Commerce Department Appendix) of President Bush's FY09 budget, funds for the newly created Office of Government Information Services (OGIS) have been shifted from the National Archives to the Department of Justice.  In fact, the President went so far as to repeal a portion of a law he had just signed:

SEC. 519. The Department of Justice shall carry out the responsibilities of the office established in 5 U.S.C. 552(h), from amounts made available in the Department of Justice appropriation for "General Administration Salaries and Expenses". In addition, subsection (h) of section 552 of title 5, United States Code, is hereby repealed, and subsections (i) through (l) are redesignated as (h) through (k). (Commerce, Justice, Science, and Related Agencies Appropriations Act, 2008.)

In an effort to rationalize the sneaky addition to the FY09 budget, the White House stated that "most of the proposed functions for the office are already performed by the Justice Department and that the National Archives has limited experience dealing with intricate legal issues relating to Freedom of Information Act requests."

The irony of this shift is that the President is using closed door tactics to undo part of the OPEN Government Act that he had signed in December 2007.  OGIS is intended to serve as the Freedom of Information Act (FOIA) oversight office.  One of the most important aspects of this newly created office is to "offer mediation services to resolve disputes between persons making requests under this section and administrative agencies."  The National Archives was chosen as a home for the oversight office because of its ability to provide impartial mediation, rather than DOJ, which defends agencies in FOIA lawsuits.

Open government advocates, led by Senator Leahy, were not pleased with the President’s attempt to undercut the OPEN Government Act.  POGO has long supported the efforts of Senators Leahy and Cornyn, and we provided them with our 2005 Good Government Award for their bi-partisan work on improving FOIA.

Another issue to consider is the President's efforts to create laws rather than enforce them.  Repealing laws and attempting to void them via Presidential Signing Statement are becoming all too common and are challenging the checks and balances governed by the Constitution.

-- Jake Wiens and Scott Amey

Bill Moyers reports on congressional oversight

The latest edition of Bill Moyers Journal on PBS, which aired last Friday, provides an informative snapshot of congressional oversight. In particular, it covers the past year's worth of investigations conducted by the House Committee on Oversight and Government Reform under the leadership of Representative Henry Waxman (D-CA). The episode is available to watch online in two parts along with summaries, transcripts, and links to relevant information.

Rep. Waxman's committee has played a leading role in unraveling the Administration's abuses of power and taxpayer dollars. The Bill Moyers episode focuses on a few of the committee's more prominent investigations – including GSA administrator Lurita Doan's alleged use of her agency's resources for Republican party politics, the potentially illegal activities of Iraq contractors hired by the State Department (e.g., First Kuwaiti and Blackwater), and former State Department Inspector General Howard "Cookie" Krongard's improper ties to Blackwater.

On a more general level, the House committee's work over the past year has been to create an extensive documentation of the Administration's policies and practices. This has proven to be a monumental task considering that executive secrecy has increased dramatically under the current President. As Rep. Waxman states at the end of his interview with Moyers, "I think this administration is doing a lot, maybe all it can, to keep from being held accountable."

This is particularly true when it comes to federal contracting, which has roughly doubled over the past decade to currently $400 billion per year. Rep. Waxman notes that almost half of this amount has been distributed without open competition, thus making it difficult to determine if the government is receiving the best products and services at the lowest cost. Furthermore, this lack of competition has led to instances of corruption and kickbacks.

The House Committee on Oversight and Government Reform has certainly gone a long way towards reasserting the "oversight" function in Congress. For more information on the committee's efforts, Marc Ash, Executive Director of Truthout, also conducted an interview (video available online) with Rep. Waxman in December.

-- John Pruett

Crucial Amendments Fall Prey to Presidential Signing Statement

In an outrageous but all-too-familiar move, President Bush has declared in a signing statement that he is entitled to ignore certain provisions of the FY 2008 Defense Authorization Bill, which he signed into law yesterday. One of these provisions would establish an independent, bipartisan Commission on Wartime Contracting; another would extend whistleblower protections to employees of defense contractors.

POGO strongly supported both of these provisions (see here and here), and we’re dismayed to learn that the White House now considers them to be optional.

According to the White House press release, the burdensome provisions “purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations...The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.”

As many reporters have pointed out, the use of presidential signing statements has increased at an alarming rate under the current administration. But should the president be allowed to selectively disregard any part of a bill that he signs into law?  Senator Levin (D-MI), Chairman of the Senate Armed Services Committee, told CQ Today that “the courts have ruled that the president cannot pick and choose provisions of appropriations bills that [he wants] to comply with.” A blue-ribbon American Bar Association task force also found that these signing statements “undermine the rule of law and our constitutional system of separation of powers.”

-- Michael Smallberg

Congress Still Largely Uninformed on Israeli Strike on Syria

Despite several congressional requests to the executive branch for briefings on Israel's air strike on Syria in September, Congress still remains largely in the dark, POGO learned yesterday.  On October 20, Reps. Pete Hoekstra (R-MI) and Ileana Ros-Lehtinen (R-FL), respectively the ranking members of the House intelligence and foreign relations committees, published an op-ed in the Wall Street Journal charging that:

We regret that the administration has ignored numerous letters from Congress asking that all members be briefed on the Israeli airstrike. Failing to disclose the details of this incident to the legislative branch, preventing due diligence and oversight -- but talking to the press about it -- is not the way to win support for complex and difficult diplomatic efforts to combat proliferation by rogue nations. [emphasis added]

The Senate intelligence committee officially told me "no comment" yesterday.  However, a congressional staffer told me that "the issue has been closely held. The leadership of the defense committees and Intel committees have been briefed, but not the general membership of the Congress as you correctly noted in Ros-Lethinen’s OpEd."  Other sources told me that they were not aware of their full committees being briefed yet either.

Perhaps of greater practical concern for congressional oversight is, though a few select members have been briefed, none of their staff, which members depend upon for their expertise and knowledge, have not been allowed to accompany them, POGO has been told.

Though the Senate intelligence committee would not speak about the issue, its chairman, Senator John Rockefeller (D-WV), then the ranking Democrat on the committee:

... complained in a 2003 letter to Vice President Cheney that his briefing on the NSA eavesdropping was unsatisfactory. "Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities," he wrote. [link]

-- Nick Schwellenbach

Whistleblowers Expose Corruption at Inspectors General

The first stop for many federal employees seeking to blow the whistle on fraud, corruption or abuse of power is usually their agency’s Inspector General. That is why it is particularly troubling that numerous Inspectors General (IG) are either under investigation, or have been forced out under a cloud in recent years.

In recent years, dark clouds hovered over the departures of Department of Health and Human Services IG Janet Rehnquist and Postal Service IG Karla Corcoran. There are currently controversies surrounding Inspectors General for the Department of Commerce, Environmental Protection Agency, NASA, and Iraq Reconstruction. In almost every case, whistleblowers or insiders exposed the problems to Congress or other oversight bodies.

The House Energy and Commerce Committee has been leading the charge in two cases:

1) Johnnie Frazier, U.S. Department of Commerce IG, who is accused of numerous alleged violations, including taking trips with no apparent official purpose at government expense, retaliating against employees who objected and refused to sign the travel vouchers, and destroying emails after he was informed of an investigation into his travel.

2) Bill A. Roderick, Acting IG of the Environmental Protection Agency who is attempting to get rid of 60 full-time staff members in his office out of a total of 360 and giving himself a $15,000 bonus, (making him possibly the only government bureaucrat on the face of the planet who ever voluntarily tried to shrink his agency).

The Integrity Committee of the President’s Council on Integrity and Efficiency (PCIE) has recently been investigating:

3) Stuart Bowen, Special IG for Iraq, who, according to the NYT, is facing accusations into “fairly narrow issues: a payment to a contractor that the employees believed was unjustified; a project to produce a type of report on reconstruction that they maintain is outside the Congressional mandate of the office; and what the employees contend is an inflated estimate of how much money investigations by the office have saved American taxpayers.” Not surprisingly, Virginia Republican Tom Davis has also opened an investigation (pdf) into Bowen as well. Probably few individuals have better undermined Tom Davis’ agenda of handing out goodies to defense and IT contractors than Stuart Bowen  who has exposed billions of dollars in contractor pilfering. We can hear the squeals of glee from here.

4) Finally, NASA IG Robert Cobb was the subject of the PCIE’s recently completed investigation. Because of the incriminating report, senior Democrats last week called on President Bush to fire Cobb and threatened to hold hearings.

-- Danielle Brian & Beth Daley

Administration Submits FISA "Modernization" Proposals

Well over a year after the New York Times exposed the warrantless National Security Agency (NSA) domestic eavesdropping program, the Justice Department and the Intelligence Community have submitted their proposed changes to the Foreign Intelligence Surveillance Act (FISA).  The NSA program circumvented the FISA and the FISA court from 2001 until earlier this year, when some sort of accomodation was made allowing the FISA to approve of monitoring.

Posted on Secrecy News yesterday:

"Today, following over a year of coordinated effort among the Intelligence Community and the Department of Justice a bill is being submitted to Congress to request long overdue changes to the Foreign Intelligence Surveillance Act," according to an April 13 fact sheet (pdf) on the proposed changes issued by the Justice Department and the Office of the Director of National Intelligence.

The text of the proposed legislative changes to FISA, with a section by section analysis, may be obtained here (pdf).

POGO has not made an analysis of the Administration's proposal, but the American Civil Liberties Union said in a statement that the proposal is an "attempt to erode the Fourth Amendment and its protections."

-- Nick Schwellenbach

OMB Posts Earmarks

Bill Allison at Sunlight Foundation drew our attention to the unprecedented news that the Office of Management and Budget (OMB) today has started posting a list of all earmarks in appropriations bills. This is fantastic news for the public, the news media, and government watchdogs. OMB uploaded earmarks on to the FY 2005 appropriations bills. Unfortunately, the database does not identify the sponsors of the earmarks.

As our wise colleague Win Wheeler points out, it appears that earmarks were snuck into one of the first appropriations bills out of the gate, the emergency supplemental for Iraq and Afghanistan which was passed in the House and the Senate and is now headed for conference. According to Win, language on the bill claims that there are no earmarks on it despite $60 million for salmon fisheries and $25 million for spinach farmers. The Congress put roughly $20 billion in additional spending on the supplemental, but claims in that bill that it: “contains no congressional earmarks.” It does appear that this language stretches the boundaries of reality.

It's interesting to note that OMB’s impetus for posting the earmarks is a January 2007 promise to cut the number and cost of earmarks in half. Ironically, Bush’s promise may be fulfilled if the Democrats continue down the road of simply lying about the fact that there are no earmarks.

-- Beth Daley

Executive Privilege: The Battles are Brewing

Paul Abrams, writing at the Huffington Post, is absolutely right: There is no explicit grant of "Executive Privilege" in the U.S. Constitution.  And thus, ironically (though hardly anymore to anyone who has paid much attention), in an Administration that has bashed judicial activism to no end for interpreting the Constitution, relies upon a legal concoction which insults it when it is abused.  (Note: The implied Constitutional grant of Congressional investigating power, has been acknowledged definitively by the Supreme Court, unlike that of Executive Privilege. UPDATE: More specifically, the scope of Exec. Privilege in response to Congressional requests for information has not been ruled upon by the courts.)

The row over the U.S. attorney firings and the ongoing investigation and Executive Branch stonewalling we're seeing currently is just the latest battle between Congress and the Executive over access to information--a battle that, at its most intense, heightens when the White House (or even more dubiously, a Department head) invokes Executive Privilege, a term with an epic ring to it, that few realize is of relatively recent vintage.

On this last and, on the surface, its most inconsequential point--the term's usage--I defer to recently departed historian Arthur M. Schlesinger Jr. writing in the Wall Street Journal (March 30, 1978, pg 8):

...'executive privilege' seems to be of very recent American usage...I cannot find that any President or Attorney General used it before the Eisenhower administration.  You will search in vain for it as an entry in such standard reference works as the Smith-Zurcher 'Dictionary of American Politics,' or 'The Oxford Companion to American History,' or Scribner's 'Concise Dictionary of American History.' It is not even to be found, I was dismayed to discover, in 'The New Language of Politics,' compiled by William Safire of Mr. Nixon's very own White House staff.

Though the "breaking news" this afternoon was that President Bush will allow Karl Rove and other White House to be interviewed by committees probing the firings of U.S. attorneys (though they will not testify under oath), these "interviews" are far from testimony.  Consider what "interviews" mean to White House counsel Fred Fielding, who is also a former Nixon deputy counsel and counsel to President Reagan--and was hired after Congress flipped over to Democratic control in November:

Such interviews would be private and conducted without the need for an oath, transcript, subsequent testimony or the subsequent issuance of subpoenas.

Just yesterday the New York Times reported that:

Dan Bartlett, counselor to Mr. Bush, has said it is “highly unlikely” that the president would waive executive privilege to allow his top aides to testify publicly. One Republican strategist close to the White House, speaking on the condition of anonymity so as not to appear to be representing the administration, said: “No president is going to let their senior staff assistant to the president go testify. Forget that. They might agree to do an informal interview, but they’ll never testify.”

The New York Times was certainly correct to report that the President is loathe to have his top aides testify.  After all, Bush initially refused to allow then-National Security Advisor Condoleeza Rice testify before the 9/11 Commission.  And even when he allowed Rice to do so:

In a letter to the panel, the White House sought written assurances that Rice’s testimony would set no precedent and that no more public testimony from any White House official would be requested.

The rationale behind the initial refusal and the request--which was granted--that no more White House officials would testify was Executive Privilege:

The White House and Rice had maintained that requiring a national security adviser to testify under oath would compromise “executive privilege,” which allows a president to exchange ideas freely with an adviser without fearing that they would be made public.

“A president and his advisers, including his advisers for national security affairs, must be able to communicate freely and privately without being compelled to reveal those communications to the legislative branch,” Bush said.

“We have observed this principle while also seeking ways for Dr. Rice to testify,” he added.

There are many more examples, but a recent one is the refusal of the CIA to turn over interrogation and detention policy documents to the Senate Judiciary Committee and a particularly egregious threat in 2003 to terminate Medicare actuary Richard Foster for reporting to Congress on cost estimates of Bush Medicare legislation.

The struggle over information between the Executive and Legislative branches is a clash of the titans.  Ultimately, both have generally avoided taking their clash to the courts in fear of adverse rulings which will cripple them.  This is why they negotiate over access or back down.  However, negotiation should not come at the cost of the public interest which is what the Congress, as the Grand Inquest of the Republic, should set out to achieve.  When the public interest is at stake, when there are clearly reasons for Congressional requests for information, the Executive should allow Congress access.  And Congress should use its leverage as the branch of government closest to the people and the tools available to it to put pressure on the Executive.

-- Nick Schwellenbach

State Secrets Privilege v. Accountability

An insight into the views of the Republic's founders can be found in their response to the English royal perogative "the King can do no wrong," that imparts immunity to the Sovereign from suit.  James Iredell, before the North Carolina constitutional ratifying convention in 1788, remarked of this British maxim, "We have experienced that he can do wrong, yet no man can say so in his own country."  The founders intended to leave sovereign immunity behind by making the United States government one where ambition is made to counteract ambition by separating powers between different branches and by enshrining the rule of law, rather than rule by man, as the DNA of the government.

Unfortunately the Republic's system of accountability and rule of law has been undermined by increasing assertions of the state secrets privilege by an agressive and excessively secretive executive branch and an overly deferential judicial branch often unwilling to examine the assertion (a notable and hopeful exception occurred last year in one of the National Security Agency warrantless wiretapping cases). Ever since the 1953 Supreme Court ruling in United State versus Reynolds, a ruling which "rests on a lie," the state secrets privilege has shut down court proceedings by denying access to documents and information necessary in order to have a fair adversarial process in court, thus thwarting accountability.

One of the most egregious examples of executive abuse of the state secrets privilege is the Justice Department invocation of the privilege in the case of Sibel Edmonds, a former FBI contract linquist, who blew the whistle, who has alleged corruption in the FBI.   But Edmonds was the wrong whistleblower to pick on: Edmonds and her allies are fighting back and Congress needs to hold hearings on the use and abuse of the state secrets privilege.  After all, we fought a war for independence so that when the people's government does wrong, we can say so.

-- Nick Schwellenbach

The Baker's Dozen of Government Oversight

While several articles on POGO's "Baker's Dozen" recommendations to the new Congress have paid special attention to government contract reform, the ultimate aim of these recommendations is to hold government accountable. The abuses and misdeeds of government contractors are but one consequence of a Congress that has abdicated virtually all oversight responsibility.

The new leadership in Congress has already indicated an urgent need for more accountability and will most likely take important steps in that direction, particular with respect to the Bush Administration. Emblematic of this change, House Democrats have re-inserted the word "Oversight" back into the Government Reform Committee. Rep. Henry Waxman, chairman of the committee, has also vowed to combat excessive Executive branch secrecy as well as fraud and abuse in government contracting.

House Speaker Nancy Pelosi announced in December the possibility of a new Truman-style commission to investigate war profiteering in Iraq and contractor fraud following Hurrican Katrina, although it remains to be seen whether Congress will actually create such a commission. On the Senate side, Judiciary Committee Chairman Patrick Leahy has proposed two bills, the Effective Corruption Prosecutions Act of 2007 and the War Profiteering Prevention Act of 2007. Both are geared towards enhancing the ability of prosecutors to file suit against defense contractors in Iraq for cases of misconduct. There has also been Leahy was recorded as saying, via the Huffington Post, that:

"Americans want the culture of corruption to end. From war profiteers and corrupt officials in Iraq, to convicted Administration officials, to influence-peddling lobbyists and, regrettably, even members of Congress, too many supposed public servants have been serving their own interests, rather than the public interest," he said. "The American people staged an intervention during the November elections and made it clear that they would not stand for it any longer. They expect the Congress to take action, and these bills are a good first step toward meeting that call."

Nevertheless, government oversight is not a “fruit salad,” to borrow a metaphor from former-Secretary of State James Baker. Holding federal agencies and contractors accountable must coincide with an earnest effort to curtail certain corrosive forces in Congress, such as wasteful earmarks, pork spending, and the influences of corporate lobbying. In the final analysis, the former goal cannot be reached without achieving the latter.

-- John Pruett

Congressional Access to Secrets Showdown

The Executive branch has always argued that it can deny Congress access to secret national security information, but the Bush administration has been particularly adept at flouting Congressional requests.  The latest example is the denial of a request by Senate Judiciary Chairman Patrick Leahy (D-Vermont) for policy documents on the detention and interrogation of suspected terrorists.  Expect this to be one of many showdowns over Congressional access to classified information between a Congress, where newly-in-charge Democrats and many Republicans alike are ready to assert their constitutional perogative of oversight, and the hyper-secretive Bush administration. 

Congressional Quarterly reports:

The Justice Department has rebuffed a Senate request for documents related to the Bush administration's policy on the detention and interrogation of suspected terrorists, particularly those held by the CIA.

Patrick J. Leahy, D-Vt., soon to take the helm of the Senate Judiciary Committee, requested the documents from Attorney General Alberto R. Gonzales on Nov. 16, after the CIA acknowledged the existence of two of them in the course of a Freedom of Information Act lawsuit brought by the American Civil Liberties Union.

The Executive branch is wrong to argue that Congress can't see classified information.  To start, there seems to be an assumption that disclosure to Congress is the same as public disclosure.  That is why acting Assistant Attorney General James H. Clinger said, in his denial to Senator Leahy, that, "Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them."  Now there may be information that the American government or most of of the public may not want Al Qaeda or other terrorists to know.  However, neither the public or terrorists will know this information unless it is declassified or leaked.  Many have noted that much more leaking comes from the Executive branch rather than Congress.   Senator Richard Shelby (R-Alabama) stated in 1998, "As CIA Director Tenet told this [Senate Intelligence] Committee last week, Congress has a better record at keeping secrets than does the executive branch, which he said, quote, leaks like a sieve, end of quote." (see page 45 of this pdf)

And Congress has never used its own rules to declassify documents on its own, but has relied on the Executive to declassify documents when it believes the public should see them.   The rules are: Senate Resolution 400, section 8, agreed to May 19, 1976 (94th Congress, 2nd Session) and Rules of the 109th Congress, U.S. House of Representatives, Rule X.

Documents can remain classified and kept from the public, yet still be shared with Congress for purposes of oversight. Congress, by and large, has been good at keeping secrets and its Members, Senators and cleared staffers have the authority to receive them.

Also to keep in mind, the Executive branch is denying Congress policy documents, not detailed information on what we actually know about Al Qaeda that could tip them off--again, if they were publicly disclosed.  If the Executive gets away with keeping these documents from Congress, then our constitutional system of separation of powers will have totally failed because Congress cannot oversee without basic information such as the policies of the Executive.  Leahy, Congress and the American public should fight for these documents.  This is a clear case where the War on Terrorism has wrongly skewed us away from one of the most fundamental principles of our constitutional Republic.

-- Nick Schwellenbach 

Dems: Well, Maybe Not All the 9/11 Commission Recs

The rumors on the Hill suggest that the Democrats plan to reject the 9/11 panel's recommendation for Congress to improve oversight of the nation's intelligence agencies.

Of all our recommendations, strengthening congressional oversight may be among the most difficult and important," the panel wrote. "So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need."

Although no political observer takes campaign promises at face value, the overwhelming mantra of Democratic candidates in this election was to implement ALL of the remaining 9/11 reforms.  Rejecting the most essential reform is a complete rejection of the spirit of the Democrats' campaign promise. Rigorous intelligence oversight is a vital change needed to improve our national security.  It is challenging to figure out which changes should be made, though some strongly argue that the tools already exist for oversight, just the intelligence committees are not picking them up and using them (pdf).

The main debate over restructuring intelligence oversight is over whether there should be greater centralization of Congressional jurisdiction, decentralization, or whether the fundamental structure and delegation of jurisdiction is sound.  It's clear that there needs to be plenty of expertise and more bi-partisanship, though not at the expense of legitimate, thoughtful oversight.

One of the alternatives considered by the 9/11 Commission is the creation of a Joint Senate/House intelligence committee modeled on the old Joint Committee on Atomic Energy (JCAE).  The JCAE was a powerful committee and has even been called "probably the most powerful Congressional committee in the history of the nation."  According to the chapter "Congressional Oversight of the [Nuclear] Bomb," in Stephen I. Schwartz's landmark book, Atomic Audit: The Costs and Consequences of U.S. Nuclear Weapons Since 1940:

To ensure a strong congressional role in overseeing the program [on atomic energy], the [Atomic Energy Act of 1946] created the JCAE, the only committee to be brought into being by an act of legislation (and thus held to have rights under that law) and the only joint committee to have full legislative powers.  Not only could the JCAE hold investigative hearings and undertake studies of issues, all bills, or other matters pertaining to atomic energy in both the House and the Senate had to be referred to the JCAE. 

In 1954 the JCAE gained the power to authorize funds for the Atomic Energy Commission.  Its joint nature was especially important, as it helped to minimize differences between the House and the Senate and bolstered its authority with the executive branch, which could not pit one committee against the other in an effort to either kill or delay undesirable legislation or achieve an agreeable compromise.
...
The [Atomic Energy Commission, then-the federal entity in charge of the U.S. nuclear weapons and energy complex] was explicitly required to keep the JCAE "fully and currently informed with respect to all od the Commission's activities," giving the JCAE "a unique capacity for legislative surveillance."

However, the JCAE often functioned as the Atomic Energy Commission's biggest promoter and protector from outside criticism.  Also, the JCAE, though it could be critical, often pumped funds into programs that the AEC or the Bureau of the Budget (the predecessor to the Office of Management and Budget) opposed.  The JCAE shaped the nuclear complex for decades, partially by putting it on steroids.  Schwartz elaborates: "For the most part, the programs that the committee had in mind exceeded the bounds of what the Executive 'deemed prudent or economical.'"

Yet such a radical centralization of Congressional jurisdiction--a la JCAE--might not be the best idea.  Earlier this year, Rep. Jeff Flake (R-Arizona) introduced a bill which would improve the sharing of classified information held by the intelligence committees with other committees with jurisdiction.  The rationale here is that the intelligence committees, which are viewed by many as currently ineffective, would no longer have such a monopoly on certain kinds of information, allowing at least effective committees with jurisdiction the ability to conduct oversight.  In fact, the JCAE was dismantled in 1977 partially because the rest of Congress was frustrated by its "stranglehold on nuclear policy matters."

Frank J. Smist Jr., in his book Congress Oversees the United States Intelligence Community 1947-1994, is not so keen on the idea of joint intelligence committee either, but has some proposals that should be considered:

The Senate and House must maintain separate intelligence committees.  Critics of the present structure frequently have proposed a single joint committee modeled after the old joint committee on atomic energy.  However, the two committees have functions that are not easily blended.  Under the Constitution, the Senate has sole authority to ratify treaties and alone exercises the "advise and consent" power with respect to presidential nominations.  In addition, a joint committee would be in an awkward position in terms of each chamber's consideration of intelligence budgets and intelligence legislation.  He believes the present system of separate committees is both adequate and necessary, but that system also needs some repairs.

The Senate Intelligence Committee was created in 1976. Unlike other Senate committees, the chairman and vice-chairman positions were structured so as to foster a close partnership between the two party leaders on the committee.  This system has worked well [POGO note--until recently]. In addition, the fact that the majority party has only one seat more than the minority party has tended to foster bipartisanship and consensus-building.  The committee's budget authorization responsibility, however, has not worked well.  The Senate Intelligence Committee has authority only over national foreign intelligence programs, while the Senate Armed Services Committee retains sole control of military intelligence, about 85 percent of the total intelligence budget.  The Senate needs to rethink how budget authorization responsibility is divided in the intelligence area.  To correct a serious deficiency in this area, the model of shared authority between the House Intelligence and Armed Services committees is worth examining and adopting.  Finally, the Senate committee needs to examine the term limits imposed on members who join the committee.
  ...
  The House Intelligence Committee was created in 1977.  Unlike the Senate Intelligence Committee, the House committee was given budget authorization oversight for the entire intelligence community.  In fashioning budgets in the post-Cold War world, such a broad overview is extremely important.  But the House committee has serious deficiencies as well.  The House committee's biggest problem is that members may serve no longer than six years.

Then there is the issue highlighted earlier this year where Russ Tice, a National Security Agency whistleblower and member of the National Security Whistleblowers Coalition, was not able to speak with either intelligence committee, because the Executive branch claimed neither committee had security clearances high enough to be briefed.  Oy vey!

-- Nick Schwellenbach and Mandy Smithberger

Senate Keeping the Public in the Dark Ages

Senator Tom Coburn (R-OK) and Barack Obama (D-IL) have proposed legislation (pdf) that would significantly upgrade public access to federal spending information.  Approximately $800 billion in federal contracts and grants would be compiled into one user-friendly database that would allow taxpayers to see how the government spends their money.  Despite the relatively low cost to create and the support of a majority of the Senate, the Federal Funding Accountability and Transparency Act of 2006 (S. 2590) has been stalled by Senators Ted Stevens (R-AK), Robert Byrd (D-WV), and possibly others. 

POGO, as well as many other groups from both sides of the political spectrum, are urging Senator Majority Leader Bill Frist (R-TN) to override any holds placed on the bill and bring it to the Senate floor for an open debate and vote.  Although Congress “talked the talk” about lobbying and earmark reform, it appears that some lawmakers are more interested in protecting pork projects, rather than improving public access to spending information and eliminating illegal influence peddling.  So much for “government of the people, by the people, for the people.”

-- Scott Amey

Judge Strikes Down NSA warrantless domestic surveillance program

Via Think Progress, Detroit federal district Judge Anna Diggs Taylor has struck down the National Security Agency's warrantless domestic surveillance program.  Numerous lawsuits have argued that the program violates the First and Fourth Amendments, as well as the Foreign Intelligence Surveillance Act.

Judge Taylor's Opinion can be found here (pdf).  A snippet:

In this case, the President has acted, undisputedly, as FISA forbids. FISA is the expressed statutory policy of our Congress. The presidential power, therefore, was exercised at its lowest ebb and cannot be sustained.

A copy of the injuction can be found here (pdf). It enjoins the administration from “directly or indirectly utilizing the Terrorist Surveillance Program.”

POGO's stance is the following:

• The White House has asserted that it operated within the bounds of the Constitution and with the law.  However, Congress has passed a law on how the Executive can engage in electronic surveillance consistent with the Bill of Rights, in particular the Fourth Amendment, with the Foreign Intelligence Surveillance Act of 1978.  Thus the Executive was not operating within a “zone of Constitutional twilight,” where Congress has not exerted itself, but rather was in violation of the law and of our constitutional system of separation of powers.
  
• The NSA warrantless domestic surveillance program was inappropriately disclosed to Congress.  In violation of the National Security Act of 1947, the Congressional intelligence committees were not “fully and currently informed” of the program.  Until the New York Times disclosure of the program in December 2005, only the “Gang of Eight”—the leadership of the committee and of the two legislative chambers—were informed and even then, the leaders of House and Senate were not briefed until March 10, 2004 (pdf), more than two years after the program began.  Only covert action programs are meant to be disclosed soley to the Gang of Eight.  The NSA program was not a covert action, a Congressional Research Service memo earlier this year states (pdf).

-- Nick Schwellenbach

The "I" Doesn't Stand for "Independent"

Today POGO released "Preying on the Taxpayer: The F-22A Raptor," a report that details the history of the troubled F-22A project and focuses on whether the F-22A meets the requirements for multiyear procurement  (MYP).  The report also highlights Institute for Defense Analyses (IDA) President Admiral Dennis C. Blair's financial conflict of interest with the F-22 project and IDA's "F-22 Multiyear Procurement Business Case Analysis" that found that the F-22A program met all of the MYP criteria. 

Admiral Blair told the Washington Post that despite his significant financial interest (31,787 shares and stock options; see Appendix E of the report) as the director of EDO, a subcontractor for the F-22, he did not recuse himself from preparing the report.   In an e-mail from IDA Human Resources, POGO was told that "Due to the nature of our work at the Institute for Defense Analyses, we are unable to provide information about conflict of interest policies or forms."  Blair told the Post that IDA does not have a conflict of interest policy for its officers, but merely "evaluate each one as it comes."

This morning POGO Executive Director Danielle Brian spoke before the Senate Armed Services Airland Subcommittee on the F-22A Multiyear Procurement Proposal.  Several senators and witnesses for the hearing expressed confusion and concern over the report of Blair's financial holdings while simultaneously heading what most assume to be an independent think tank.  "This is extremely, extremely disturbing," said Senate Armed Services Chairman John Warner.

After the independence of IDA came into question during hearing, Senator Saxby Chambliss (R-GA) questioned other independent research officials as to who it was they worked for.  GAO Comproller General David Walker said that GAO works for Congress and not for the Executive Branch.  Chambliss criticized the GAO for not bringing its concerns forward to the Air Force when they saw a conflict in their analysis and IDA's conclusions.   Senator John McCain (R-AZ) also questioned how independent IDA's analysis could possibly be when they consulted Air Force and Pentagon officials for the report. Towards the end of the hearing, Senator Mark Dayton (D-MN) stated he would like to work together with POGO to develop conflict of interest legislation for Federally Funded Research and Development Centers (FFRDCs) and other government contractors. 

Congress Daily (no link available without subscription) reported that Warner plans to make the multiyear contract a subject for conference negotiations over the competing authorizations.  "One important voice hasn't spoken yet and that's the conference and the conference chairman," said Warner, referring to himself.

POGO recommended that Congress remove the language authorizing the MYP until the F-22A program meets MYP requirements and that Congress consider applying conflict of interest rules to FFRDCs.

-- Mandy Smithberger

Gingrich’s “Advice” on Congressional Oversight

A new article in The Hill reveals more details about the meeting held between White House official Clay Johnson, former House Speaker Newt Gingrich and Republican Congressional investigators. According to The Hill:

Gingrich and Johnson also spoke out against holding many public hearings on oversight.

Johnson said “A lot of communication with Congress doesn’t have to be in the hearing room.” He called for more work between the two branches to be done on an informal basis and said that hearings would work best at the end of the process.

Yeah, and maybe everyone can have a group hug too. The article goes on to add:

“Congressional hearings add to the problem,” noting that very often this “maximizes hostility between the legislative and executive branch and minimizes creativity.”

The White House’s Johnson even claims that “the executive branch provides better oversight than the legislative branch. He touted the OMB website expectmore.gov, which grades federal programs.”

Anyone out there have a few things to say about the effective programs listed at http://www.expectmore.gov? Perhaps a Congressional oversight hearing is merited on the effectiveness of Expectmore.gov.

For example,  the Nuclear Regulatory Commission scores high marks in its spent fuel program, yet the program has done little since 9/11 to ensure that spent fue l pools are adequately protected from a terrorist attack (a scenario with the 9/11 Commission reported that terrorists had considered). Indeed, if the program is run so well, why did the NRC stone wall the Congressionally-requested National Academy of Sciences when it was conducting a review of security at the fuel pools?

NRC refused to allow its report to be released but, even worse, it refused to provide information to the Academy to help it conduct its study. According to the study (pg. 33): “The Nuclear Regulatory Commission declined to provide detailed briefings to the committee on surveillance, security procedures, and security training at commercial nuclear power plants.”  Luckily, the House National Security Subcommittee has held hearings to hold NRC accountable.

Unfortunately, these “evaluation programs” by the executive branch often end up to be mealy-mouthed exercises in paper pushing.  Though they can be useful, they cannot replace checks and balances between the branches of government.  A principle, one which we feel folks like Johnson and Gingrich should be reminded, upon which our constitutional republic was founded.

-- Beth Daley

Hunter's Brand of Congressional "Oversight"

The two definitions of the word "oversight" have a neat symmetry.  One means "an unintentional omission or mistake," whereas the other, is nearly its exact opposite: "Watchful care or management; supervision."  Typically, the latter meaning of the word is meant when it appears in the phrase "congressional oversight."  But not always, with the minor caveat that the "unintentional omission" may, at times, been intentional...

Since there seems to be burgeoning interest in the real estate holdings of staffers-turned-lobbyists (-turned-staffers-again, in some cases) and defense contractors in Jerry Lewis’ orbit  (Laura Rozen provides a nice summation and one-stop shop of links here), we think it’s worth revisiting a sub-rosa real estate relationship involving House Armed Service Committee chairman Duncan Hunter (R-CA).

Almost exactly a year ago, the Associated Press did a nice roundup of House leadership financial disclosure statements. Among the highlights for Hunter was his co-ownership of a rural Virginia cabin with “former Democratic U.S. Rep. Pete Geren of Texas.”

At first glance, no big deal.  Preston M. “Pete” Geren III, however, is not your average former Congressman. A Blue Dog from the Texas 12th, Geren’s 1989-1997 House stint is still less-than-fondly remembered by some for his relentless championing of that ineffective sinkhole of a project brought to us by Boeing and Bell, the V-22 Osprey.

More recently, Geren briefly served as Acting Secretary of the Air Force from July to November 2005, after Air Force Secretary James Roche resigned in the wake of the Boeing tanker lease scandal.  In February 2006, Geren was confirmed as Undersecretary of the Army.

But Geren is no newcomer to the Pentagon. Between 2001-2005, Geren occupied an office "strategically next door"  to Secretary of Defense Donald Rumsfeld, whom he served as a special assistant responsible for "inter-agency initiatives, legislative affairs, and special projects." In written responses to questions posed by the Senate Armed Service Committee during his Army confirmation earlier this year, Geren noted that among his specific responsibilities as a Rumsfeld aide was acting as Pentagon liaison with Congress on detainee abuse issues that began with Abu Ghraib in 2004.

A less-charitable description of Geren’s Abu Ghraib duties, according to a knowledgeable congressional source, was “keeping Congress off Rumsfeld’s back”. Indeed, much to the Pentagon’s consternation, Senate Armed Services Committee chairman John Warner's (R-VA) was actually moved to investigate Abu Ghraib and hold multiple hearings on the matter. Not so with Geren's real estate partner, the Chairman of the House Armed Services Committee. Consistently dismissive of interrogation and detention excesses as isolated incidents, Hunter actively discouraged Congressional investigation into Abu Ghraib.

Absent from national press coverage of Hunter's antipathy towards Abu Ghraib investigations, however, was the fact that Hunter's top corporate campaign contributor, San Diego-based defense contractor Titan Corporation, potentially had a lot to lose in the scandal. (Titan gave generously to Cunningham as well).

When Titan bought Virginia-based contractor RTG in 2001, it also acquired a $10 million, five-year contract awarded in 1999 to provide linguists to the US Army. In the wake of 9/11, Titan's linguist contract was given a ceiling of $657 million, with the company receiving $112.1 million from the contract in 2003--six percent of Titan's total revenue. A May 21, 2004 report by the San Diego Union-Tribune revealed Titan’s contractor hiring and training practices to be systemically lacking, and that far from supplying "skilled contract linguists" as its contract stipulated, Titan was "hiring people who speak limited English and have no professional experience as interpreters and translators". Personnel from Titan were also singled out in both the Taguba, Fay and Kern reports as participants in abuses at Abu Ghraib. (Titan, along with Arlington, Virginia-based contractor CACI, is currently facing multiple lawsuits.)

As Abu Ghraib was unfolding, Titan was also losing money in legal bills as federal investigators were discovering Titan to be among the most ethically bankrupt US contractors doing business overseas. The matter of illicit campaign contributions-for-quadrupled management fees in the West African nation of Benin didn’t sit well with the Justice Department; a host of document falsifications and under-reporting expenses didn’t sit well with the Securities and Exchange Commission. (Lockheed Martin wasn’t thrilled, either; poised to buy Titan, the company pulled out of the deal in 2004). On March 1, 2005, Titan pled guilty to three criminal counts of bribery, and paid a total of $28.5 million in fines to the Justice Department and SEC.

Despite the brazenness and scope of Titan's actions, as part of the federal government’s settlement with the company, the Defense Department waived its right to disbar Titan from any contracts. Though the Titan contract should have been re-bid by now, according to transcripts of recent Titan shareholder conference calls, the company (now part of L3 Communications, which bought it last year) will retain the contract until at least next year.

As a general rule, we tend to think that those charged with oversight, and those overseen by Congress, shouldn’t be in business together--and if they are, their respective disclosures should be clearer. (Hunter’s disclosures (pdf) make no mention of Geren’s Defense Department affiliation, and Geren’s disclosures simply refer to the “Hunter/Geren partnership”--to look at them, you’d have no idea that the “Hunter” chaired House Armed Services). Would public knowledge of the business relationship between the Pentagon’s Congressional point man for Abu Ghraib and the House Armed Services Committee Chairman--and, as we noted earlier, champion of an exceptionally ethically-challenged defense contractor--given anyone pause in May 2004 (or any other time, for that matter)? Was Hunter’s real estate partner in a position to help Hunter help any of his defense contractor patrons?

Whatever the case, Geren has done nicely for himself while in government service. As his on-average 28 page public financial disclosure reports reveal, though he resigned his position on several corporate boards when he took the Army job, in his four years as a Rumsfeld special assistant, Geren collected an approximate total of $200,000 a year as a director of Anadarko Petroleum, Texas-New Mexico Power Company, Cullen/Frost Bankers and RME Petroleum.

-- Jason Vest

De-Fanging the Watchdogs

As if Congressional oversight isn’t already regarded right now as a complete joke, here comes an astonishing report in The Hill yesterday:

Former House Speaker Newt Gingrich (R-Ga.) and a top Bush administration official urged Republican investigators on Capitol Hill to change how they conduct probes of the executive branch in a private meeting earlier this spring.

The unusual request infuriated some of the GOP aides, who countered that the administration has repeatedly failed to cooperate with their requests for information. The staffers expressed outrage that the meeting was even taking place, calling it inappropriate for a White House policymaker to tell investigators how to scrutinize the Bush administration.

In 2004, Inspectors General were given similar instructions by the same White House official (Clay Johnson) in a memo (pdf) that was reported on by Paul Singer of the National Journal. Inspectors General were created by Congress to be their front line watchdogs inside Executive Branch agencies, with responsibility to report to both the Congress and the heads of each agency. Yet, that memo instructed:

Surprises are to be avoided. With very limited exceptions primarily related to investigations, the OIG should keep the Agency advised of its work and its findings on a timely basis, and strive to provide information helpful to the Agency at the earliest stage possible…OIG [Office of Inspector General] and Agency management will work cooperatively in identifying the most important areas of OIG work….

Now, in the spirit of bi-partisan fair share blame, let us remember that a similar “let’s all get along” meeting happened under the Clinton Administration with OMB Deputy Director Alice Rivlin.  A follow up memo (pdf) from Rivlin stated:

To put it simply, the IG’s have pledge to focus more on whether Federal programs are working (the "big picture") and less on identifying individual, minor infractions or procedures (the "gotchas").

These were strongly nuanced ways of telling the IGs to back off, avoid controversy, and be a team player within their agencies, despite the fact that their mandate is to conduct independent oversight and root out cases of fraud, waste, and corruption.

-- Beth Daley

Vice President Dodges Classification Oversight

In its latest annual report (pdf), the Information Security Oversight Office (ISOO) has noted that, for the third year in a row, the Office of the Vice President has refused to release data on its classification and declassification activities.  This is "an apparent violation of an executive order issued by
President Bush," notes Steven Aftergood of the Federation of American Scientists. 

Two other bodies also did not disclose their activity, according to ISOO--the President’s Foreign Intelligence Advisory Board, and the Homeland Security Council.  Presumably the White House Office and the rest of the Executive Office of the President submitted to classification oversight.

This flagrant disregard for oversight and penchant for secrecy in the current Administration, particularly in the Vice President's office, has been noted by commentators across the political spectrum too numerous to count.

In what is perhaps a coincidence, in March 2003 the Vice President's classification (though the jury is still out regarding declassification) authority was raised by an executive order to the level of the President's from that comparable to an agency head.

-- Nick Schwellenbach