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

When Public Information Goes Private

As companies like Google and Microsoft forge ahead with ambitious projects to scan the collections of many prominent research libraries, some have raised concerns about giving private entities so much control over content that is typically open and free to the public.

In a similar vein, a number of open government advocates and legal pundits have recently turned their attention to a suspicious contract that will give Thomson West the digital rights to a massive compilation of legislative histories prepared by the Government Accountability Office (GAO).

Much of what we know about the Thomson West contract has been uncovered by internet archivist Carl Malamud--who runs a website at http://public.resource.org--with assistance from the Electronic Frontier Foundation.  As Malamud describes it, the GAO legislative histories are the "definitive dossiers that track a bill through the hearing process and into law.  If you want to divine the intent of Congress, this is where you go."

GAO staff have compiled more than 20,000 legislative histories covering most public laws from 1915 to 1995.  As it stands now, the histories can be viewed in either paper or microfiche form at the GAO onsite library.  You can also ask GAO for copies of the histories, at a cost of 20 cents per page. 

In an effort to preserve the histories, GAO wants to scan them and make them available in electronic format.  Digitizing the histories began as an in-house effort, but GAO recently awarded Thomson West a contract to take over and complete the project (see below).  Under the terms of the contract, Thomson West will scan all of the histories (including the documents already scanned in-house) at no cost to GAO.  Once it has scanned the histories, Thomson West can make them commercially available to the public, and can charge a fee to recover the cost of digitization (GAO staff will still be able to access the documents for free on their own special account).

Read this doc on Scribd: Contract Between Thomson West and GAO

As many bloggers have observed, however, there are pressing questions about the Thomson West contract that have yet to be answered.  Since taxpayers already paid for GAO staff to compile the legislative histories, why should the public have to pay again to view the histories online?  Why do government employees outside of GAO have to pay to view the histories?  Did GAO consider awarding the contract to any educational institutions or nonprofit organizations before deciding to go with a private company?  What happens if Thomson West decides to raise its fees or further restrict public access to the histories?

We don't mean to sound the alarm on all public-private collaborations; there are countless examples of the government utilizing the efficiency and ingenuity of the private sector to advance projects that serve the public's interest.  And it is certainly understandable that Thomson West would want to charge a fee to recover the cost of digitizing the extensive collection of legislative histories.

Nevertheless, as the government puts more and more information online, it should consider the ramifications of giving private companies like Thomson West exclusive control over materials that are of great interest to the public.

-- Michael Smallberg

Déjà Vu All Over Again

Remember those hanging chads from Florida in the election of 2000?  That was of course the most notorious failure of election equipment in modern memory.  In the wake of that disastrous election, the results of which are still disputed by many, counties and cities across the country moved to purchase and install nice, new, modern, electronic, touch-screen voting machines in place of the old-fashioned punch-card types.

But guess what?  All those fancy new machines have turned out to be the cure that's worse than the disease.  In The New York Times Magazine this past January, Clive Thompson wrote:   

In the last three election cycles, touch-screen machines have become one of the most mysterious and divisive elements in modern electoral politics.  Introduced after the 2000 hanging-chad debacle, the machines were originally intended to add clarity to election results.  But in hundreds of instances, the result has been precisely the opposite:  they fail unpredictably, and in extremely strange ways; voters report that their choices 'flip' from one candidate to another before their eyes; machines crash or begin to count backward; votes simply vanish.  (In the 80-person town of Waldenburg, Ark., touch-screen machines tallied zero votes for one mayoral candidate in 2006 – even though he's pretty sure he voted for himself.)  Most famously, in the November 2006 Congressional election in Sarasota, Fla., touch-screen machines recorded an 18,000-person 'undervote' for a race decided by fewer than 400 votes.

The problem is that most of the touch-screen machines do not produce any paper record and thus their results are not verifiable.  In a landslide election, that may not matter.  But if the election is close, and recounts are demanded, the lack of paper records could create mayhem. 

Congressman Rush Holt (D-NJ) has made a crusade of trying to rationalize the nation's voting systems.  A holder of a Ph.D. in Physics, Holt has been pushing for changes in the law for the last several years.  Now he's anxious to avert an electoral catastrophe this coming November.  His bill, H.R. 5036, would reimburse any counties that opt to retrofit their touch-screen machines with paper records that voters can verify.  As Rep. Zoe Lofgren (D-CA) pointed out as she led debate on the House floor on behalf of the bill, "Having a voter verified paper trail with an automatic routine audit will go a long way to increase voter confidence and deter fraud."

In his remarks during the floor debate on Tuesday, April 15th, Holt warned that without the extra federal assistance to the states and counties prior to this November, six complete states and a number of counties in 14 additional states "will be conducting completely unauditable elections in 2008." 

The problem for the bill arose with the cost estimate of $685 million issued by the Congressional Budget Office.  As Lofgren pointed out, that was the estimate Rep. Holt had calculated way back in early 2007 when he first offered his legislation.  Further, she said, that number "anticipates the participation of everyone in this bill.  I think it is highly unlikely that every jurisdiction will participate in every aspect of the bill…It is clear that the actual score or total would be less."

But that was seemingly enough to change the minds of Republicans who had previously supported the bill.  Although the committee vote had been both bipartisan and unanimous, suddenly the minority party had problems with the bill.  Rep. Vernon Ehlers (R-MI) led the fight on the House floor against H.R. 5036.

Ehlers maintained that he and Holt had not been able to reach full agreement on a satisfactory package. He explained, "I supported it out of committee because I thought it should reach the floor for floor debate. I anticipated that it would be taken up under a rule where we might have the possibility for an additional compromise, but that has not happened."

Ehlers said he had some qualms about total reliance on paper records, believing that "redundancy in an electronic fashion" might be sufficient. "But the final blow to our efforts was the judgment of the CBO that it was $685 million for 1 year. I realize that Mr. Holt had estimated that would be the cost in his original bill. In fact he had included it as an authorization in his original bill." But now that CBO had confirmed that number, "I am afraid that is likely to be the death knell." 

In vain did Holt and Lofgren protest that since the bill was optional, and not all counties would opt in, "there's not way that that would be the full amount."

Holt said the principle was quite simple: "Anything of value should be auditable. Votes are valuable." But "in too many places around the United States, they are not even auditable." He pointed out additionally that "already in this primary season, there have been numerous, numerous problems, questions, and unresolved disputes." He added: 

In county after county, in State after State, electronic voting systems have failed in many ways, failure to start up in the morning, a mismatch between the electronic count and the end-of-day printout, failed memory cards, and on and on and on. In too many places, the irregularities can not be resolved. There is no way to resolve them. There is no way to know because there is no record of the voter's intentions.

Citing studies performed by both California and Ohio, Holt said "a number of academic and public policy experts have recommended that the shortcomings of these systems be addressed. He quoted the Brennan Center for Justice of New York University Law School, which found that the many reports of problems during the primaries "provide a preview of potentially widespread machine failure and disenfranchisement in November."

It wasn't until his concluding remarks, however, that Ehlers finally let the cat out of the bag:

I also want to comment that the White House also has taken a dim view of this. They've issued a SAP [Statement of Administration Policy] this afternoon, somewhat to my surprise, that indicates that they oppose this bill and urge Members of Congress to vote against it.  [Emphasis added.]

In her closing remarks Lofgren confessed her disappointment at the change by Ehlers.  She noted that in the past year: 

…we have worked with Secretaries of State, the National Association of Counties, disability rights groups, voting rights groups, civil rights groups, to try and get a measure that could garner broad support across the country. … I will say that the White House issuing an SAP today, after a year's work, I think, is really bad faith. We have worked very hard, and to come out at the last minute is really very unprofessional.

Although the bill garnered more "yeas" than "nays," it failed because it had been brought to the floor under a rule requiring a two-thirds vote to pass. It also didn't help that the White House expressed its opposition to the bill at the eleventh hour, resulting in a change of heart among House Republicans. 

Common Cause President Bob Edgar was dismayed: "The United States is spending billions of dollars to build democracy overseas, yet our own Congress turned its back on the workings of our own democracy."

So if you loved Florida in 2000 or Ohio in 2004, you might just be over the moon this coming November. 

-- Beverley Lumpkin

Legislation 2.0

Our friends at the Sunlight Foundation have just launched a new website, PublicMarkup.org, which presents an intriguing model for online collaboration in the drafting of legislation.

Sunlight has taken a first stab at drafting a bill, the Transparency in Government Act of 2008, as part of a legislative effort to increase transparency throughout Congress and the executive branch. Now it’s the public's turn. You can offer suggestions for improving the bill by posting comments on both individual sections and on the bill as a whole. 

With your help, Sunlight believes the legislation will "create historic changes in the way the executive and legislative branches provide information to the public." We think the project will also serve as an exciting model for giving the public a stronger voice in the legislative process.

-- Michael Smallberg

Matthew Diaz to Be Honored at 2008 Ridenhour Prizes

On Thursday, April 3rd, POGO will be celebrating the fifth anniversary of the Ron Ridenhour Prizes.  The prizes were established by The Nation Institute and The Fertel Foundation, in partnership with POGO, the Government Accountability Project (GAP) and the Fund for Constitutional Government, to "recognize those who persevere in acts of truth-telling that protect the public interest, promote social justice or illuminate a more just vision of society."

The recipient of this year's Ridenhour Prize for Truth-Telling is Matthew Diaz, a former JAG officer at Guantanamo Bay, Cuba, whose incredible story was recently chronicled in the New York Times Magazine.

Diaz first became interested in law as a young man, after his father was convicted of murder and sent to death row in a case fraught with questionable evidence.  After consistently receiving stellar performance reviews during his time as a Navy lawyer, Diaz was assigned to the military's detention camp at Guantanamo Bay in 2004.

Not long before he arrived, the Supreme Court had ruled that Guantanamo Bay prisoners were entitled to judicial review as a means of challenging their incarceration. Although he believed that many of the prisoners posed a serious threat to the United States, Diaz quickly came to the conclusion that the Pentagon was blatantly undermining the Court's decision.  For instance, the military leadership still refused to release the names of the prisoners, making it difficult for any outside lawyers to contact them.

Diaz soon decided that something had to be done.  One early morning in January 2005, he printed out the names and serial numbers of the 551 prisoners, consolidated the information onto tiny pieces of paper stuffed inside a Valentine's Day card, and mailed it to a lawyer at the Center for Constitutional Rights, which had originally filed a petition in the Supreme Court case.

Diaz knew he was probably risking his career by disclosing such sensitive information; he soon learned there would be other consequences as well.  The lawyer at the Center for Constitutional Rights was forced to turn the list of detainees over to the Justice Department and the F.B.I., which easily identified Diaz as the man behind the mailing.  In May 2007, a jury of naval officers discharged Diaz from the military and convicted him on four counts, including the disclosure of information that "could be used to the injury of the United States or to the advantage of a foreign nation."

Even though a federal court had by this time ruled that the list of names was public information subject to the Freedom of Information Act, Diaz was sentenced to six months in prison, making him the only U.S. serviceman to be sent to jail for defying the administration's detention policies.  His case is currently under appeal.

The other recipients of this year's Ridenhour Prizes are:

• Bill Moyers, a veteran journalist whose latest series, Bill Moyers Journal, premiered on PBS in April 2007.  He will be awarded the Ridenhour Courage Prize in recognition of his "fierce embrace of the public interest and his advocacy of media pluralism, and for contributing an unyielding moral voice to our national discourse;" and
• James D. Scurlock, who will be awarded the Ridenhour Book Prize for his latest work, Maxed Out: Hard Times in the Age of Easy Credit, "a disturbing account of America's unsustainable relationship with debt."

-- Michael Smallberg

Sign Up to Watch Webcast of Sunshine Week Panel Discussion

Today marks the first day of Sunshine Week 2008--"a national initiative to open dialogue about the importance of open government and freedom of information."  This Wednesday, POGO will be co-hosting a Sunshine Week panel discussion on "Government Secrecy: Censoring Your Right to Know," moderated by OpenTheGovernment.org.  The discussion will address issues such as executive branch power and secrecy, congressional rights and responsibilities, and the role of the non-profit sector.  Confirmed speakers include:

• Patrice McDermott (moderator), Director of OpenTheGovernment.org;
• Ann Beeson, Director of U.S. Programs at the Open Society Institute and former Associate Legal Director of the American Civil Liberties Union;
• Mickey Edwards, Director of the Aspen Institute-Rodel Fellowships in Public Leadership and former member of Congress; and
• John Podesta, President and CEO of the Center for American Congress and former Chief of Staff to President Clinton.

The event will take place on March 19th from 1:00 to 2:30 p.m. at the National Press Club in Washington, D.C.  It will also be broadcast via satellite link at a number of registered sites around the country.

Click here to see a list of the registered sites that will be broadcasting the event.  Or click here to download a registration form to sign up for a free webcast.  Simply complete the form and email it to cgreen@openthegovernment.org.  You will then receive instructions on how to view the webcast.  The deadline for registration is March 18th (tomorrow).

We hope you can join us either in person or online to take part in this important discussion.

Congress Needs to Learn a Little Openness Itself

A new bill introduced on Tuesday by Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX)--the 2005 recipients of POGO's Good Government Award--would add an important provision to last year's OPEN Government Act, signed by the President in December.

That bill represented the first major reform of the Freedom of Information Act (FOIA) in more than a decade.  It expanded the definition of "news media" to include bloggers; imposed more stringent deadlines on executive agencies; required each agency to make available a FOIA public liaison; ordered each agency to establish tracking systems for requests, along with phone lines or internet service to provide status updates on requests; and mandated that each agency file a report with the Attorney General every February reporting the number of requests received along with the amount of time taken to respond.  There was also an Office of Government Information Services (OGIS) set up within the National Archives and Records Administration to review polices and procedures and monitor agencies' compliance with FOIA, although President Bush would like OGIS to be housed in the Department of Justice.

Clearly that bill, as with the original FOIA, was aimed at executive branch agencies in an effort to force them to be more responsive, transparent and open about the public's business.

The new bill, S.2746, was dropped in the hopper just as Sunshine Week approaches, and is named the OPEN FOIA Act of 2008.  It is actually aimed at Congress itself.  Executive branch agencies often cite certain exemptions to FOIA in their refusal to release documents.  But increasingly Congress has failed in its duties with regard to one specific exemption, known as the "(b)(3) exemption."

As explained by Senator Leahy, Chairman of the Judiciary Committee, the (b)(3) exemption "requires that government records that are specifically exempted from FOIA by statute may be withheld from the public.…But in recent years we have witnessed an alarming number of FOIA (b)(3) exemptions being offered in legislation--often in very ambiguous terms--to the detriment of the American people's right to know." 

When Congress instead allows such exemptions to be stealthily buried in complex legislation, Leahy said, it is shirking its duty.  He and Sen. Cornyn said Congress must be diligent in reviewing any new exemptions to FOIA to prevent abuses and to shine more light on government processes.

The new bill requires that when Congress provides for any statutory exemption to FOIA, it must state its intention to do so clearly and explicitly.  It seems unobjectionable, right?  Nevertheless, last year the Administration did object, and offered so many changes that the language got watered down until it ultimately was dropped from the OPEN Government bill.

Apparently when executive agencies offer draft legislation, they like to be able to hide FOIA exemptions inside confusing language.

Lydia Griggsby, counsel to the Judiciary Committee, told POGO she is hopeful the bill will pass this year as a stand-alone provision.  Noting that both Sens. Leahy and Cornyn "feel very strongly" about the measure, she added that "it's also important to raise the awareness of Members" to the bill's significance.

Sunshine Week, by the way, is scheduled to run from March 17^th through the 21^st.

-- Beverley Lumpkin

Wikileaks Wins

Readers of this blog are no doubt aware that the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed a motion last week on behalf of POGO to save Wikileaks, the anti-corruption web site that a California federal court ordered to shut down earlier this month.  The court had acted at the request of Bank Julius Baer, which argued that the site was posting confidential documents--banking records that allegedly show clients engaging in money laundering and tax evasion. (POGO's earlier posts on this case can be found here and here.)

The court's ruling touched off a firestorm in First Amendment advocacy circles and gave Bank Julius Baer lots of unwanted publicity.  Last Friday, after hearing arguments from public interest and media organizations, including the motion filed on behalf of POGO, U.S. District Judge Jeffrey S. White backtracked and lifted the injunction shutting down Wikileaks.  (Of course, as POGO noted, the site and the offending documents were always accessible through other means.)   Judge White's order is here.

-- Neil Gordon

POGO Seeks to Intervene on Behalf of Wikileaks

The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed a motion this week on behalf of POGO to intervene in a lawsuit that resulted in the shutdown of Wikileaks, an anti-corruption website where whistleblowers can anonymously upload documents.  A similar motion was filed by Public Citizen and the California First Amendment Coalition.   

A California federal court issued the permanent injunction a few weeks ago in response to a lawsuit filed by a Swiss bank, Julius Baer Group.  The bank complained that a former employee was uploading confidential records that allegedly contained evidence of the bank's tax evasion and offshore dealings.  Instead of ordering Wikileaks to remove these individual documents, the judge ruled that the entire site must be shut down.

The motion filed on behalf of POGO claims that the injunction violates the public's First Amendment right to "receive information and ideas."  Wikileaks has previously posted documents of great interest to the public, such as a manual describing the U.S. Army's operations at Guantanamo Bay, Cuba

An amicus curiae brief was also filed by a group of media and public interest organizations, including Harvard Law School's Berkman Center for Internet & Society's Citizen Media Law Project (CMLP), the Los Angeles Times, the Associated Press, and the Society of Professional Journalists.  David Ardia, director of the CMLP, said in a statement that the court overstepped its boundaries in shutting down a "website that has been at the forefront exposing corruption in governments and corporations around the world."

A hearing on the Wikileaks case is scheduled for tomorrow.  In the meantime, you can still access the site at wikileaks.ws, wilileaks.be, and wilileaks.cx.

-- Michael Smallberg

Hey Tipster: Send Us More Details

We received your two anonymous tips last night and today about a federal agency's award of a large contract to a small firm with questionable ties to a former Pentagon official.  You mentioned there was a Pentagon inspector general report on the matter.  Could you give us more details about the name of the company and what the ties between it and the former Pentagon official are? 

-- Nick Schwellenbach

Whistleblower Documents Web Site Ordered to Shut Down

In the 1970s, when President Nixon wanted to stop the leaking of embarrassing information, he turned to a special unit known as the "White House Plumbers."  Last week, a Swiss bank used a plumber in the form of a U.S. federal court to plug the release of embarrassing documents by Wikileaks, an international anti-corruption Web site where whistleblowers can anonymously post documents.

Wikileaks is openly defying a California federal court, which granted a permanent injunction last Friday ordering the site to shut down.  Swiss company Bank Julius Baer sought the injunction to prevent the site from posting what it claims are stolen documents provided by a disgruntled former employee.  The Court also ordered Wikileaks to stop displaying or distributing the documents, which allegedly show the bank’s involvement in money laundering and tax evasion in the Cayman Islands.  Wikileaks believes the orders violate the First Amendment and vows to appeal.

Wikileaks started in December 2006 as a means of exposing the unethical behavior of corporations and governments, primarily in Asia, the former Soviet bloc, Latin America, Sub-Saharan Africa and the Middle East.  Its first major scoop was the exposure of corruption by former Kenyan president Daniel Arap Moi.  The site also posts documents relating to the U.S. military's operation of the prison at Guantánamo Bay, Cuba, and the rules of engagement for U.S. troops in Iraq.  Since its launch, Wikileaks has received over 1.2 million documents from anonymous sources.

Clearly, the Court and Bank Julius Baer underestimated the ingenuity of the Web development community.  As of today, the site is currently inaccessible through its familiar Wikileaks.org address as per the injunction, but it can still be accessed though its IP address as well as through numerous “mirror sites” such as wikileaks.ws, wikileaks.be, and wikileaks.cx.  Noted blogs such as TPM Muckraker are also closely following the case.

POGO understands how difficult it can be to obtain information documenting fraud, waste or abuse in the government or the private sector.  Although we recognize that certain information needs to be protected from disclosure, a balancing test must be performed that considers the public harm that could occur if such information is not released.

The next hearing in the case is scheduled for February 29.  Stay tuned.

-- Neil Gordon

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

Transparency up North

This week, the state of Alaska launched a website that tracks every state expenditure of over one thousand dollars, as reported on today's NPR Morning Edition.   This makes Alaska the tenth state government to provide such a service to its taxpayers.   On a side note, Alaska also has the lowest individual tax burden of any state in the U.S.

Alaska calls its website "Checkbook Online."   According to the state, this service "...is part of a national trend for governments to develop websites that allow constituents to view financial information in searchable formats.  Such websites are widely considered to improve transparency into the financial operations of government."

We at POGO truly hope this trend continues and expands to governments, ahem Federal, that take in considerably more tax dollars than Alaska.

-- Jake Wiens

Simplifying the Alphabet Soup

Our friend Steven Aftergood of the Federation of American Scientists noted some apparently good news on his Secrecy News blog last week: the government is at long last moving to rationalize the chaos that has long existed in the handling of information deemed sensitive but unclassified--and yes, they call that "SBU."

More than two years ago, President Bush issued a memo ordering a new policy for such information, often marked "For Official Use Only," or "Limited Distribution."  But Aftergood points out that the president's purpose was to promote information sharing among federal agencies, not necessarily to rationalize the system for us outsiders.

The situation has become more absurd through the years as different agencies dreamed up new ways to say "you can't have it!"  In testimony last April before the House Homeland Security Subcommittee on Intelligence, Amb. Ted McNamara, Program Manager for the ODNI Information Sharing Environment, testified that without a manageable system for handling SBU, it's impossible for federal agencies to share critical information among themselves, much less with state and local agencies, or the private sector.

McNamara testified that the "lack of a single, rational, standardized, and simplified SBU framework...heightens risk aversion and undermines confidence in the control mechanisms.  This leads to both improper handling and unwillingness to share information....This is a national concern because the terrorist threat to the nation requires that many communities of interest, at different levels of government, share information."  McNamara called the current situation "unacceptable."

Whereas the system for handling classified information is controlled by both law and regulation, unclassified info has grown haphazardly and is treated differently across federal agencies.  McNamara told the committee: "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." 

Further confusing matters, some agencies use "SSI" to mean "Sensitive Security Information," while EPA uses it to mean "Source Selection Information."  And "ECI" can mean either "Enforcement Confidential Information" or "Export Controlled Information."  Also, ten different agencies employ the designation "Law Enforcement Sensitive" or "LES," but there is no uniformity of definition or control.  "Thus," said McNamara, "an individual can have access to the information in one agency but be denied access to the same information in another."  McNamara testified that henceforth what has been called SBU will now be dubbed "Controlled Unclassified Information," or CUI.

Sebastian Sprenger at InsideDefense.com reports that McNamara has sent a report to the White House with his recommendations for the new system, which will reduce the hundred-plus markings to only three.  Sprenger writes that McNamara found there are two central criteria for controlling CUI: the amount of safeguarding needed, and the breadth of its dissemination.  Safeguarding would be either "standard" or "enhanced," and dissemination would be either "standard" or "specified."  The three new markings--for which the White House has yet to select the new names--would correspond to: Standard/Standard, Standard/Specified, and Enhanced/Specified (officials thought that "Enhanced/Standard" doesn't make much sense).

Both Aftergood and Sprenger report optimism that the new system will allow for more public access to government information.  In support, Aftergood quoted 2006 testimony from McNamara that "the great majority of the information which is now controlled can be put in a simple unclassified, uncontrolled category, it seems to me."  Later in the hearing, McNamara expanded on the need for no more than about six CUI categories: "but then inserting those categories that definitely require under legislation or government-wide regulation, require controls, that they be put in the proper category of control.  And that the rest of it I would think would just become unclassified, with no control mechanism."  Of course, McNamara's main concern was to simplify the sharing of necessary information among various government actors and their private-sector partners, not to release more information to the public.

We at POGO are crossing all our fingers and toes, but we are concerned that some agency-specific markings will apparently remain, even with the new policy.  They include several that pertain to homeland security issues and would otherwise be thought of as information that should be shared: SGI for "Safeguards Information," which relates to nuclear security; PCII for "Protected Critical Infrastructure Information;" SSI for "Sensitive Security Information," used in the transportation sector; and CVI for "Chemical Vulnerability Information."

We are even more concerned that the final word on this policy will come from a White House that has hitherto shown no aptitude or inclination for sharing public information with the public, that has rather than decreasing secrecy, steadily increased it throughout its term.  But we will keep those fingers and toes crossed.

-- Beverley Lumpkin

President Bush signs FOIA reforms

Requests made through the Freedom of Information Act (FOIA) will soon see improvements in the response process. On New Year’s Eve, the President signed the OPEN Government Act of 2007 (S. 2488) into law despite having tried previously to prevent such reforms. A press release by the National Security Archive states:

“This is the bill that President Bush wrote an executive order to try to prevent,” said Tom Blanton, director of the Archive, referring to E.O. 13392 (December 14, 2005), which called for a “citizen-centered and results-oriented approach” to FOIA, established Chief FOIA Officers at each of 92 major agencies, and required agencies to evaluate their FOIA programs and draft improvement plans.  President Bush signed the bill without comment after unanimous approval in Congress.

“Congress has acted to improve the FOIA for the first time in more than a decade, since the electronic FOIA amendments of 1996, but Congressional and public oversight will be essential for the law’s success,” Blanton noted.  “Our Knight Open Government Survey in 2007 found that only one in five federal agencies fully complied with the 1996 law, even after 10 years of implementation.”

The OPEN Government Act of 2007, if enacted properly, should help curb some of the most frustrating aspects of the FOIA process, such as the indefinite waiting period for agency responses and fee charges for released documents. Specifically, the legislation requires an online tracking system for requesters, creates a government-wide office to arbitrate disputes, establishes penalties for FOIA offices that take longer than the allotted response times, clarifies the definition of “news media” status, limits agency “search” and “duplication” fees, and allows for reimbursement of attorney fees in some situations where requesters must go to court.

-- John Pruett

OMB Launches New Spending Database

The Office of Management and Budget (OMB) today unveiled a new public database that provides a wealth of easily searchable information on federal spending in the private sector – i.e. contracts, grants, etc. The database, located at USASpending.gov, was created pursuant to the Federal Funding Accountability and Transparency Act of 2006 (31 USC 6101, PL 109-282) sponsored by Sens. Tom Coburn, Barack Obama, John McCain, and Tom Carper, and Reps. Roy Blunt and Tom Davis.

According to the 2006 Act, the free, online database must provide:

(A) the name of the entity receiving the award;

(B) the amount of the award;

(C) information on the award including transaction type, funding agency, the North American Industry Classification System code or Catalog of Federal Domestic Assistance number (where applicable), program source, and an award title descriptive of the purpose of each funding action;

(D) the location of the entity receiving the award and the primary location of performance under the award, including the city, State, congressional district, and country;

(E) a unique identifier of the entity receiving the award and of the parent entity of the recipient, should the entity be owned by another entity; and

(F) any other relevant information specified by the Office of Management and Budget.

Today, Senator Coburn lauded the OMB’s efforts to fulfill the legislation at an OMB press conference dedicated to the site’s launch. Commenting that “an informed public is a free public,” Sen. Coburn said that the site’s information would “put control of government back in the hands of the people” by providing transparency in how the government spends taxpayer dollars. Together with Sen. Coburn, Robert Shea, the OMB official in charge of creating the site, also touted the importance of bloggers in pushing for, publicizing, and making use of the OMB site’s data.

USASpending.gov was designed through a collaborative effort between the OMB and the non-profit organization OMB Watch. The latter launched a site last year, Fedspending.org, which served as the structural basis for the OMB database. An article in today’s Washington Post included the following comments from Mr. Shea and OMB Watch director Gary Bass:

They were very cooperative and supportive when they recognized we were trying to do the right thing -- even before I was paying them," Shea says of OMB Watch.

"Normally, we come to bury Caesar, not praise him," Bass says of Shea. "But they are doing something that's very cool, that's very innovative in government."

Compared to other government databases of federal spending such as the Federal Procurement Data System (FPDS), USASpending.gov provides information to the public in a more user-friendly format and will include new spending updates every 2 weeks. This is a great improvement considering that FPDS can be unwieldy at times, doesn’t include subsidiaries in company searches, and has often been slow to update information. Additionally, USASpending.gov allows users to submit recommendations for improving the site but doesn’t require users to create a login account to conduct searches.

-- John Pruett

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

Secret Briefing to House Intel on the CIA IG Today

The House intelligence committee is holding a closed door meeting on the CIA's Inspector General today, presumably to figure out if its independence is being threatened by the actions of CIA chief Michael Hayden and his subordinates.

Though there may be some anonymice going to some of the major papers, the House intelligence committee should make transcripts of this hearing available, consistent with the needs of national security.  Which means if there is information that is truly sensitive (it should go without saying that embarrassing information is not sensitive), redact it, but the blanket cloak of secrecy itself may undermine the full effectiveness of congressional oversight.

-- Nick Schwellenbach

Fireworks Over SBA Inspector General Report

Senator John Kerry threw down the gauntlet yesterday over a Small Business Administration Inspector General report (pdf) that got the heavy black marker treatment from the agency. According to a release from Kerry’s office:

The Small Business Administration (SBA) took the highly unusual step of requesting that the Inspector General redact large portions of its report, including the majority of its recommendations, the agency’s responses to those recommendations, and the Inspector General’s comments on the agency’s response.

And, according to Senator Kerry’s letter to the SBA Administrator (pdf), “The OIG has stated that it does not necessarily agree with the extent of the redactions, and I am inclined to agree.”

In fact, the redactions were so extreme that they included the first three of the IG’s recommendations, and both the SBA’s response to the recommendations and the IG’s reply to that response.

An unusual note by the SBA Office of General Counsel prefaces the report and draws attention to the extensive redactions: "Although the Office of the Inspector General does not necessarily agree with the extent of, as a courtesy, we have agreed to redact this text." [emphasis added]

Just in case you think the IG protests too much, check out the Results in Brief section, pp. 4-7 of the report.  That’s a huge waste of a lot of perfectly good black ink.

There is often tension between government agencies and their Inspector General watchdogs who can be the bearer of bad news about those agencies. POGO has been researching the effectiveness and independence of the IG’s. We’ve already found other instances where IGs have had their reports unnecessarily redacted by agencies or where the agency has simply refused to post an IG’s reports on the web.

Inspector General legislation THAT passed by a vote of 404-11 in the House, despite a Presidential veto threat, would require that all IG reports be posted on the web within three days. The Senate will likely take up corresponding legislation in the coming days.

Meanwhile, Senator Kerry promises a hearing in the near future.

-- Beverley Lumpkin and Beth Daley

Want to rummage the government's attic?

Some friends of POGO's have begun a new website that should excite the public, journalists or anyone interested in piercing the veil of government: GovernmentAttic.org.  According to GovernmentAttic.org, "The aim of this web site is to make available materials unavailable elsewhere.  There is no topic-oriented theme to our content.  If we have a theme, it is one of openness, hence the motto: Videre licet."

The first document sets on GovernmentAttic.org are "recent Freedom of Information Act request/processing logs for nearly 50 FOIA offices and, among others, 30 files on other subjects ranging from dog and horse gas mask development to No-Fly lists," a press release (pdf) says.

-- Nick Schwellenbach

Get My FBI File

This past June, we blogged about the website “Get Grandpa’s File,” which is an attempt to aid the masses in requesting documents that the FBI kept about their deceased grandparent(s), through the Freedom of Information Act.  Although a useful website for those who are interested in their no longer living grandparent(s) documented activism or tomfoolery, it is not very useful beyond that . . . until now.   

“Get Grandpa’s File” has expanded to include a sister site, entitled “Get My FBI File.”  This site aids people in requesting documents about themselves held by the CIA, Defense Intelligence Agency, National Security Agency, the Secret Service, and the Army Criminal Investigative Command. 

Just like “Get Grandpa’s file,” this new addition aids you in receiving information through the Freedom of Information Act.  Although you certainly have the option of requesting documents about yourself through the FOIA office of any government agency that strikes your fancy, “Get My FBI File” claims their  “...site is a little easier to use and may be more likely to get the records you seek.”

“Get My FBI File” makes the process easier by using software that allows you to simply fill in a few slots with suggested information.  The software subsequently converts that information into a letter addressed to the proper FOIA office.  Of course, if you are worried about your privacy, you can choose which slots you want to leave empty.  The software will then create a letter with blank spaces available for you to handwrite the rest of the information needed to have a successful FOIA request.

Obviously, you may not receive any information about yourself.  Not everyone has a file at the FBI or CIA, but wouldn’t you sleep easier at night if you knew?  All it takes is 5 minutes of filling out slots on a website, a photocopy of your driver license, and postage.  Who wouldn’t sacrifice 5 minutes of their time and some postage to find out what kind of dirt the government has on them?  I know I would.

-- Jake Wiens
   

Remembering John Berthoud

What a shock we at POGO had yesterday when we learned that our colleague John Berthoud, the Executive Director of the National Taxpayers Union, died unexpectedly last week.  At only 45, he had accomplished so much. NTU is a powerhouse voice for the taxpayers. I know many of the coalition efforts in which POGO has participated – from open government initiatives to whistleblower protections -- have been significantly boosted by NTU’s involvement.  Just this summer, I spoke on a panel at the NTU annual conference – and John was so gracious and welcoming. We talked about pursuing new partnerships in the future. It is hard to believe our community has lost this outstanding colleague in such an untimely death.  Our heartfelt condolences go out to our friends at NTU during this very sad time.

-- Danielle Brian

9/11: Principle versus Compensation

To some close observers of the September 11th civil litigation that is still underway nearly six years after the horrible terrorists attacks in 2001, comments in late June of this year by Judge Alvin K. Hellerstein were not just shocking and disrespectful, but reflected the lack of accountability that September 11th families have long battled. 

More specifically, some 9/11 victim families are seeking to learn through the discovery process what, if any, role the airlines and the Federal Aviation Administration (FAA) played in weakening security to make air travel faster and more convienent.  These particular families decided to pursue litigation for accountability reasons, rather than simply be content with the payout from the 9/11 Victims' Compensation Fund. However, Judge Hellerstein continues to press for resolution through settlements without discovery. 

While explaining his thoughts on principles versus compensation in support of his push for settlements, Judge Hellerstein said on June 25 this year, "It is very crass and it probably will come back to be critical of me, but there is an expression that is sometimes very useful, 'Money is the universal lubricant.'  It makes it easier to go on with one's life."

Judge Hellerstein further explained his view, "Somehow we need to get past September 11, 2001 as a country and individually for all clients, and I would like to bring about that possibility as best I can, as efficiently as I can in a short a period of time as I can." (a snippet of the transcript can be found here)

Former Boston Logan airport FAA security official Brian Sullivan, who is a close observer of the 9/11 families; cases, said in response, "We are a country founded on principles.  The remaining 9/11 plaintiffs seek justice through discovery and a trial.  To assume that compensation can dissipate their principles, and ease their pain, is an assumption the judge shouldn't make.

"Al Qaeda and their Islamic Fundamentalist Extremist brethren are fanatically dedicated to their cause.  If money can compromise our principles, they have us defeated before we've even begun to fight," he added.

Also at issue, complicating discovery in court are information security barriers--notably use of the Sensitive Security Information (SSI) label--that the FAA and the Transportation Security Administration (TSA; an inheritor of many of the FAA's records) have thrown up, frustrating access to information.

Sullivan also said, "The Sensitive Security Information designator is supposed to be used to protect information in the interests of national security, not as a shield to cloud government and/or airline negligence and incompetence....This has complicated and obfuscated the process, as the plaintiffs continue to battle for information in disovery and has been the main reason liability trials have been delayed for going on six years."

-- Nick Schwellenbach

THE COURT:  I learned long ago as a lawyer that many

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        1    cases of principle stop being cases of principle when there are

        2    elements of expense or recovery that are presented.  I have had

        3    clients come to me and say look, I want you to defend me, it is

        4    a case of principle.  Then when I presented my first bill, it

        5    stopped being a case of principle.  I think it is common

        6    experience.

        7             Similarly on the other side, people say I don't care

        8    what the recovery is, I want my day in court until someone

        9    gives them a check.  It is very crass and it probably will come

       10    back to be critical of me, but there is an expression that is

       11    sometimes very useful, "Money is the universal lubricant."  It

       12    makes it easier to go on with one's life.

       13             Out of the mundane, you can fashion something that

       14    makes a great deal of sense.  We are coming on six years from

       15    the terrible event of September 11th, 2001.  The public life is

       16    4 score and 10 if it is correct.  There is a great value in

       17    living out those years that God has allotted to each of us in a

       18    way that is most productive for the individual and for society.

       19    What happened on September 11th, 2001 is now a memory with

       20    different degrees of pain for different people, for some degree

       21    of pain for each and every American and perhaps beyond the

       22    United States of America.

       23             Each of us has a choice either to never forget that

       24    pain and have it ever present in our lives or to fashion a life

       25    beyond the pain.  If one looks at the issue in that way -- and

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        1    I suggest that it is the only way to look at it -- the question

        2    then becomes what's the fairest, the most efficient, what is

        3    the best way to get on with the rest of our lives.  It seems to

        4    me that if I were your client, Ms. Schiavo, and one day perhaps

        5    I'll be lucky enough to perhaps be your client or a client of

        6    someone else or perhaps maybe I'll be lucky, lucky to have

        7    avoided some of the terrible problems in life that brings us --

        8    in any event, if I were your client and I were presented with

        9    an opportunity to get a fair and proper disposition, I think I

       10    would jump at the chance.

       11             Perhaps if the opportunity came to Mr. and Mrs.

       12    Carstanjen with regard to the memory they have of their son,

       13    they would find the benefits of a fair and proper disposition

       14    so important and so appropriate as to go past their suffering.

       15    They have others.  They can do good for themselves and for