The Project On Government Oversight (POGO) Blog

House Passes CLEAR Act

The House of Representatives passed the CLEAR Act (Consolidated Land, Energy, and Aquatic Resources Act of 2009, or, H.R. 3534) late yesterday by a vote of 209 to 193. You may read POGO Executive Director Danielle Brian's statement on the bill, which features several of POGO's recommendations for reforming the Minerals Management Service (MMS) in the wake of the Deepwater Horizon disaster, here.

-- Bryan Rahija 

Embarrassing Secrets? David Tenenbaum and the State Secrets Privilege

"When properly invoked, the state secrets privilege serves important goals. History shows that where it is abused, there are serious consequences." Senator Patrick Leahy (D-VT), 2009

Is the state secrets privilege still being abused? POGO has witnessed government actions to thwart litigation, to seemingly conceal environmental crimes, or to cover up embarrassment (as in the Sibel Edmonds battle). But another case is raising similar red flags—a religious discrimination case. David Tenenbaum falls into this unfortunate group, but his case is not yet closed.

The government invokes the state secrets privilege in cases to prevent disclosure of alleged sensitive national security information relevant to the claims and defenses at issue. When invoked, the evidence is removed from the case, and in most cases, the privilege summarily prevents the case from moving forward. Simply stated, the case never reaches the merits—it is dismissed based on government claims that it cannot proceed without jeopardizing national security.

In 1995, David Tenenbaum started working on an unclassified program to upgrade vehicles’ armor at the Army’s Tank-Automotive and Armaments Command (TACOM) under the Department of Defense (DoD). In the fall of 1996, the DoD started investigating Tenenbaum for espionage, telling him that the intrigue was just a security clearance test.

 

House Passes Offshore Oil and Gas Worker Whistleblower Protection Act

The House just passed HR 5851—the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010. POGO strongly supports this bill, which was sponsored and championed by Reps. George Miller (D-CA) and Ed Markey (D-MA). Find POGO's statement on the bill and some quick and dirty analysis here.

-- Bryan Rahija

Where's the Reaction to "Top Secret America"?

POGO Executive Director Danielle Brian offers her thoughts to the The Washington Post on its "Top Secret America" series:

"I would have thought this series would have been a game changer of how Congress looks at intelligence," said Danielle Brian, executive director of the Project on Government Oversight, a frequent critic of military and intelligence contractors. "I would have thought they would be having a hearing scheduled immediately. I thought people would have been asking for GAO [Government Accountability Office] reports.

You can read more about our work on oversight of the intelligence community here.

-- Bryan Rahija

House to Vote on Two Key Pieces of Legislation Today before Recess

The House is set today to vote on two key pieces of legislation in the wake of the Deepwater Horizon disaster in the Gulf: the CLEAR Act (Consolidated Land, Energy, and Aquatic Resources Act of 2009), H.R. 3534, and the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, H.R. 5851.

Both bills would be important steps in the name of accountability, transparency, and oversight of the oil and gas industry.

Several of POGO's recommendations have been worked into the legislation—read more about those recommendations and find POGO's statement on the upcoming votes here.

-- Bryan Rahija

Morning Smoke: Great Explainer on the Need for Intel Community Oversight

Why the Intelligence Community Needs GAO Oversight by Julian Sanchez [Newsweek]

Michigan Oil Spill Raises Familiar Questions About Oversight by Andrew Restuccia [The Washington Independent]

Goldman Already a Step Ahead of FinReg by Charlie Gasparino [FOX Business]

Intelligence panels take baby steps on contractor reform by Jeff Stein [Spy Talk]

C-17 Crash Claims Lives of Four Airmen [airforce-magazine.com]

The Insignificance of Citi's $75 Million Fine for Subprime by Daniel Indiviglio [The Atlantic]

Justice Joins Whistle-Blower in Suit Accusing Oracle of Overcharging U.S. by Ashlee Vance [The New York Times]

Gulf of Mexico Has Long Been a Dump Site for Industry by Campbell Robertson [The New York Times]

Gold In Them Thar Efficiencies by Winslow Wheeler [DoD Buzz]

Independent QDR Panel Recommends Buying More of Everything, Increasing Defense Budget by Greg Grant [Defense Tech]

Hayward Defends Tenure, BP's Spill Response by Monica Langley [The Wall Street Journal]

Craigslist creator tries to bring transparency initiative out of the shadows by Allan Holmes [Nextgov]

No More #$%&*? Talk At Goldman by Caitlin Kenney [Planet Money]

Pentagon Shoots Down POGO's FAPIIS FOIA

POGO just learned that the Department of Defense (DoD) rejected our Freedom of Information Act (FOIA) request for the data contained in the government’s new contractor performance and responsibility database, the Federal Awardee Performance and Integrity Information System (FAPIIS).

This should make the contracting community—especially the lawyers over at Wiley Rein LLP—very happy.

We originally submitted our request in April to the General Services Administration (GSA). GSA is the agency tasked with creating and maintaining the database, so we were surprised to get a response from GSA several weeks later directing us to re-submit our request to DoD. We did, and we also took the opportunity to add one additional request:

All materials developed by the Federal Acquisition Institute (FAI), the Defense Acquisition University (DAU), or any other office or agency to assist and train acquisition officials in the proper use of the data in FAPIIS.

DoD said the information contained in FAPIIS is exempt from release “in its entirety” under FOIA exemption (b)(5), which covers “inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency” (POGO has blogged about this infamous exemption before). According to DoD, “FAPIIS information is considered source selection sensitive and therefore not publicly releasable.”

As for our request for FAPIIS training materials, DoD insists that “all responsive information has already been posted online” on the PPIRS and CPARS websites.  If you visit the sites, you can see there is almost nothing there, although the CPARS site contains a link to this brochure containing a few somewhat-useful tidbits about FAPIIS.

POGO still believes that the public has a right to know the past performance and responsibility backgrounds of federal contractors, and that it makes absolutely no sense to deny access to a database largely made up of information that comes from public sources. POGO will therefore appeal this denial.

-- Neil Gordon 

See also:

• Move Over FCMD Make Way for FAPIIS
• Feast Your Eyes on FAPIIS
• Senate Considers Improvements to FAPIIS
• Contractors Ponder Next Move With Regard to FAPIIS
• Federal Contractors to Government: Don't Tread on Me! (And Hurry Up With My Award Fee)

New Podcast: Countdown to Zero...Oversight of the Nuclear Weapons Complex, That Is

A new POGO podcast is now available for your listening pleasure!

POGO Senior Investigator Peter Stockton makes his podcast debut, as he and other POGO staffers discuss Countdown to Zero—a new documentary about nuclear security issues—as well as the broader issue of oversight of the U.S. nuclear weapons complex.

• Download the latest podcast
• POGO podcast RSS feed
• Subscribe to POGO podcasts for free on iTunes
• POGO podcast archive

-- Bryan Rahija

Image by Flickr user _Drave, used under Creative Commons License

Did Congress Just Exempt the SEC from FOIA?

Like many others, we were outraged to learn yesterday that a provision buried in the financial reform bill may allow the Securities and Exchange Commission (SEC) to ignore a vast array of Freedom of Information Act (FOIA) requests. But there is still widespread disagreement over the intent of this provision, and questions remain as to how it will be interpreted and applied.

In the meantime, Politico reports that House Oversight and Government Committee Ranking Member Darrell Issa (R-CA) will be introducing legislation later today to repeal Section 929I, the provision that prohibits the SEC from publicly disclosing any “records or information” provided by its regulated entities if the SEC uses the information for “surveillance, risk assessments, or other regulatory and oversight activities.”

The issue came to a head this week as part of an ongoing FOIA dispute between the SEC and the FOX Business Network.

FOX Business sued the SEC in March 2009 for failing to produce documents related to the agency’s botched investigations of the Madoff and Stanford Ponzi schemes. Now the SEC is arguing that a provision in the recently passed Dodd-Frank Wall Street Reform and Consumer Protection Act exempts the agency from releasing any documents related to FOX Business’s request. Some lawyers are even interpreting this provision to mean that a vast majority of the SEC’s records will be exempt from public disclosure.

 

Rules Committee Tackles CLEAR Act Later Today

From The Washington Post:

One law enforcement official said criminal investigators will look for evidence that MMS [Minerals Management Service] inspectors were bribed or promised industry jobs in exchange for lenient treatment. "Every instinct I have tells me there ought to be numerous indictable cases in that connection between MMS and the industry," said this official, who spoke on the condition of anonymity because the investigation is unfolding.

Today at 4 o'clock the House Rules Committee is considering amendments to the Consolidated Land, Energy, and Aquatic Resources Act of 2010. As an update to yesterday's post, the full list of amendments can be found here.

There are a lot of great opportunities to make sure that reform in the wake of the Deepwater Horizon disaster effectively targets the problems that plagued the Minerals Management Service (MMS) for years. Some of the amendments under consideration would:

Morning Smoke: How Can We Calculate Royalties Owed if We Don't Know How Much Oil Was Spilled?

Majority of spilled oil in Gulf of Mexico unaccounted for in government data by David A. Fahrenthold and Leslie Tamura [The Washington Post]

SEC Says New Financial Regulation Law Exempts it From Public Disclosure by Dunstan Prial [FOX Business]

Criminal probe of oil spill to focus on 3 firms and their ties to regulators by Jerry Markon [The Washington Post]

Mixed messages on possible F-35 funding cut? by Stephen Trimble [The DEW Line]

GOP appointees to oversight panel praise Elizabeth Warren's work by Brady Dennis [Political Economy]

Orszag: Agencies often spend ‘not out of need, but out of inertia' by Sean Reilly [Federal Times]

Petraeus: Fight ‘With Discipline,’ Contract With Care by Spencer Ackerman [Danger Room]

House takes hard line on Humvees by Jen DiMascio [Politico]

Can the Secrecy System Be Fixed? by Steven Aftergood  [Secrecy News]

NNSA sticks to UPF cost range -- for now by Frank Munger [Atomic City Underground]

SEC puts reform refight off-limits by Fred Barbash [Politico]

Fannie Mae, Freddie Mac Still Too Big to Nail by Jonathan Weil [Bloomberg]

Fallen Soldiers' Families Denied Cash as Insurers Profit by David Evans [Bloomberg]

Can Whistleblowers Be Protected? by Steven Aftergood  [Secrecy News]

House Legislation to Reform MMS in the Wake of Deepwater Horizon Heads to Rules Committee

The CLEAR Act, the House version of legislation to reform the Minerals Management Service (MMS) in the wake of the Deepwater Horizon disaster, continues its march through the halls of the legislative branch. Yesterday the House Committee on Rules scheduled a meeting to consider the bill for Thursday.

POGO supports the CLEAR Act, and we're particularly pleased with the Act's revolving door restrictions, which would put some much-needed distance between the industry and its regulators in the federal government. But we hope that additional amendments to address POGO's recommendations and strengthen the bill will be submitted before the 6:30 PM deadline for amendments. We'd also like to see an amendment to establish the Gulf of Mexico Independent Regional Citizens' Advisory Council.

Meanwhile, Representative George Miller (D-CA) has introduced a bill that has caught our attention, HR 5851—the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010. POGO has been very supportive of this bill and we're glad to see it offered alongside the CLEAR Act. 

-- Bryan Rahija

See also:

• CLEAR Act Provisions that POGO Hopes Will Survive Markup
• POGO Recommends More Oversight and Accountability in the CLEAR Act
• Senate Committee Passes Amendment to Slow Revolving Door Between Industry and Interior
• Read more about POGO's work related to the Gulf oil spill