More Than 50 Federal Watchdogs Sign Letter Condemning OLC Decision That Allows White House Counsel To Unilaterally Block Whistleblower Reports

from the administration-consolidating-power dept

The whistleblower report implicating President Trump in a quid pro quo exchange of US military aid for promises to investigate a political rival has been very illustrative of the dangers of whistleblowing. Laws and policies mean next to nothing when the proper channels are willing to bury reports and possibly the reporter.

The president himself has called for the whistleblower to be unmasked. The Office of the Director of National Intelligence unilaterally decided this whistleblower report didn't need to go any further than its unfriendly confines. This decision was made despite the allegations containing matters of "urgent concern:" foreign interference in a US election.

The ODNI got the back up it needed from the White House. The Office of Legal Counsel sided with the administration and claimed the content of Trump's call with Ukraine president Volodymyr Zelensky wasn't "concerning" enough to be forwarded to Congressional oversight by the ODNI.

The Inspectors (plural) General disagree. A letter [PDF] sent to the Office of Legal Counsel -- signed by more than 50 IGs from dozens of federal agencies, including the DOJ, NSA, CIA, and State Department -- says the OLC's opinion is not only wrong but potentially seriously damaging.

We… share the ICIG’s concern that the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct. Whistleblowers play an essential public service in coming forward with such information, and they should never suffer reprisal or even the threat of reprisal for doing so.

How does the OLC's opinion make things more dangerous for whistleblowers? By taking away the IG's authority to independently review complaints containing "urgent concerns" and forward those to Congress if they involve members of the Executive Branch. The OLC wants to place itself between the IG and Congress, and to make the final call on whistleblower reports, which shifts all the power to the Executive Branch and makes it highly unlikely anything targeting White House officials will ever make its way into the hands of Congressional oversight.

It would be wholly inconsistent with the IG Act, and undermine IG independence, if the agency head – instead of forwarding the IG’s concerns to Congress as the law requires – sought OLC’s advice so that OLC could consider, and then potentially secondguess, the IG’s determination (a) that the problem, abuse, or deficiency was a “serious” or “flagrant” one, or (b) that it related to the administration of agency programs and operations.

The letter points out allowing the OLC's determination to stand creates a closed loop where the Executive Branch polices itself. This was undoubtedly the OLC's intention because it's highly unlikely it simply made a mistake of law.

In this matter, OLC did not find that production to Congress was limited due to a valid constitutional concern. Rather, OLC substituted its judgment and reversed a determination the statute specifically entrusted to the ICIG because of its independence, objectivity, and expertise to credibly assess the information. [...] Further, the opinion potentially creates space for agency heads across government to make their own determinations related to IG jurisdiction or reporting. Such a result would be contrary to IG independence and congressional intent in requiring IGs to maintain independent legal counsel and may impede the ability of Congress and taxpayers to obtain the objective and independent oversight they rely on from IGs.

When the most powerful part of the government becomes a law unto itself, everyone loses.

[T]his concern is not limited to the intelligence community but will have a chilling effect that extends to employees, contractors, and grantees in other parts of the government, who might not consider it worth the effort and potential impact on themselves to report suspected wrongdoing if they think that their efforts to disclose information will be for naught or, worse, that they risk adverse consequences for coming forward when they see something they think is wrong.

If this had only been signed by a couple of IGs who worked regularly with the ODNI, it might have been easy to write this off as the efforts of a few aggrieved watchdogs whose toes had been stepped on. But it's signed by IGs from all over the federal government, indicating that almost everyone this OLC opinion effects disagrees with it. If it stands, whistleblowing will become more difficult than it already is. When the power shifts in DC, it won't improve things for whistleblowers. It will only change the party affiliation of the administration benefiting from this decision.

Filed Under: congress, inspectors general, odni, olc, transparency, whistleblowers, whistleblowing

Agency Watchdogs Ask Congress To Roll Back Decision Allowing Agencies To Withhold Documents From Oversight Entities

from the a-new-low-in-sensitivity-training dept

FBI. DEA. NSA. CIA. DHS. TSA. All these acronyms (and more) participate in activities that can (and do) have negative effects on Americans' civil liberties. But that's OK, says the government, because we have oversight. This assertion just simply isn't true. The Snowden leaks proved what oversight existed was beholden to the NSA and frequently put itself between the agency and legislators on the outside of the inner circle in order to keep its secrets protected.

Elsewhere, the entities charged with providing oversight for government agencies -- the various Inspector General's offices -- were finding themselves unable to pursue their duties because the agencies they watched refused to cooperate with their investigations. Michael Horowitz, the DOJ Inspector General, frequently expressed his displeasure with the DEA and FBI, both of which refused to provide him with the documents he was seeking.

Over at the CIA, Inspector General David Buckley performed his investigation of the alleged hacking of Senate staffers' computers. He found the allegations to be true. The CIA responded by discrediting his report and performing its own internal audit, which naturally found the agency to be blameless and the Senate at fault for supposedly abusing its access to CIA documents. Buckley retired. The CIA has yet to replace him.

As if things couldn't get any worse, the Office of Legal Counsel decided the best route for effective oversight was to hand over control to the agencies being overseen. On July 20th, it issued a decision that said Inspectors General needed to seek permission from the agencies under their purview for access to sensitive documents. If the agencies turned them down, too bad. They'd just have to do without.

The IGs -- representing 72 government agencies -- have sent a letter to Congress asking them to overturn the OLC's decision. (via Unredacted)

Despite the unequivocal language of Section 6(a) of the IG Act, the OLC opinion concludes that it does not entitle the DOJ-IG to obtain independent access to grand jury, wiretap, and credit information in the DOJ’s possession that is necessary for the DOJ-IG to perform its work. Indeed, the OLC opinion concludes that such records cannot be obtained by the DOJ-IG pursuant to the IG Act, and can only be obtained in certain – but not all – circumstances through provisions in the specific laws related to those records. Further, the opinion provides that only the Department of Justice itself decides whether access by the DOJ-IG is warranted – placing the agency that the DOJ-IG oversees in the position of deciding whether to grant the Inspector General access to information necessary to conduct effective and independent oversight. Requiring an Inspector General to obtain permission from agency staff in order to access agency information turns the principle of independent oversight that is enshrined in the IG Act on its head.

The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work. Even absent this opinion, agencies such as the Peace Corps and the U.S. Chemical Safety and Hazard Investigation Board (CSB) have restricted or denied their OIGs access to agency records on claims of common law privileges or assertions that other laws prohibit access. Similarly, the Department of Commerce denied its Inspector General (Commerce-IG) access to agency records that were needed for the Commerce-IG to complete an audit of agency operations because agency counsel had concluded, based on guidance that agency counsel said came from OLC, that it might be a violation of another federal statute to make the records available to its Inspector General. As a result, the Commerce-IG could not complete its audit.

In other words, things were already bad. Now, they're impossible. These agencies were already doing everything they could to thwart their oversight. Now, the OLC has given them permission to stonewall every single investigation that requires the access to "sensitive" agency documents -- which would be a great majority of them.

The letter goes on to point out that the OLC's decision creates a smokescreen that will have serious repercussions for years to come.

Without timely and unfettered access to all necessary information, Inspectors General cannot ensure that all government programs and operations are subject to exacting and independent scrutiny. Refusing, restricting, or delaying an Inspector General's independent access may lead to incomplete, inaccurate, or significantly delayed findings and recommendations, which in turn may prevent the agency from promptly correcting serious problems and pursuing recoveries that benefit taxpayers, and deprive Congress of timely information regarding the agency's activities. It also may impede or otherwise inhibit investigations and prosecutions related to agency programs and operations.

The OLC's decision is astounding, and should be undone as swiftly as possible. There's a lot of room for abuse in many agencies, and one of the only things acting as a check against this are the IGs. The assurances that there is sufficient oversight are hollow. There was very little oversight to begin with. With this determination in place, there's almost none. The denied access can likely be challenged, but time is often of the essence, and weeks or months of discussion over the release of documents can put a lot of space between badly-behaving agencies and whatever scandal they're attempting to ride out.

The OLC had decided government agencies shouldn't be accountable to the public, and its excuse is "security." It's being left up to agencies to decide what information is too "sensitive" to share with their overseers. And it will be evidence of screwups, quasi-legal activities and other abuses of power that receive this label first.

Filed Under: cia, dea, dhs, doj, fbi, inspector general, inspectors general, nsa, office of legal counsel, olc, transparency, tsa, watchdogs