Mal de Swamp
Department of Homeland Security Threatens to Muzzle Its Watchdog from Reporting on Trump’s Travel Ban
In the days after President Trump issued an executive order in January directing a ban on citizens from seven foreign nations, the Department of Homeland Security (DHS) violated two court orders putting a temporary halt to Trump’s order, according to a letter John Roth, the Department’s top watchdog, sent to Congress. The letter also states that Customs and Border Protection (CBP) leadership “had virtually no warning” that the executive order was coming and could not answer basic questions about it, including whether it applied to lawful residents, “a fundamental question that should have been resolved early in the process,” according to Inspector General Roth.
Roth’s findings are potentially potent since they involve a major law enforcement agency flouting court orders, putting at risk the checks and balances in our system of government. The watchdog’s findings could also provide new ammunition to those with lawsuitsagainst the administration for what Trump has called the “travel ban.”
But the full report detailing Inspector General Roth’s findings is being blocked from release to the public by CBP on the grounds that it contains information on the DHS’s “deliberative process.”
Across multiple administrations, the Project On Government Oversight has long advocated for stronger independence for IG offices and sees their government watchdog role as a critical piece in holding officials and agencies accountable. If DHS is successful in keeping the public and Congress from seeing this report, it will set a dangerous precedent for other agency heads to make future IG reports secret because their findings might be politically sensitive.
“I am particularly troubled by the Department’s threat..."
Inspector General Roth’s letter was made public last night by Senators Tammy Duckworth and Richard Durbin, both Illinois Democrats.
“The rule of law and our Constitutional protections mean little if law enforcement is empowered by the President to disregard them. If the Trump Administration decides to bury an Inspector General report suggesting that’s what happened, there will be repercussions in Congress,” the Senators said in a press statement.
The letter says that most CBP personnel “complied with the court orders,” even going to “extraordinary lengths to comply” at some airports, but there was “some delay and confusion as to the scope of some of the orders” and some CBP staff learned about them from watching TV.
However, CBP personnel were “very aggressive in preventing affected travelers from boarding aircraft bound for the United States” and, in the view of Roth’s office, violated two court orders. Travelers from seven countries were impacted: Libya, Iraq, Iran, Somalia, Sudan, Syria, and Yemen. Some of those affected were Iraqis who risked their lives as translators for U.S. military forces in that country.
The haphazard, chaotic implementation of Trump’s executive order occurred when now-White House Chief of Staff John Kelly was in charge of DHS. Kelly was confirmed as DHS Secretary by the Senate on the same day Trump was inaugurated—one week before issuance of the executive order.
Agencies have the discretion to restrict public release of predecisional information when the public makes a request under the Freedom of Information Act (and this is often abused by agencies and is informally called the “withhold it because you want to” exemption). However, it’s quite another matter for an agency to restrict what its watchdog publishes.
“I am particularly troubled by the Department’s threat to invoke the deliberative process privilege, as this is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis,” Roth wrote. “In fact, we regularly have published dozens of reports that delve into the Department’s rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made.”
“Indeed, that is at the heart of what Inspectors General do,” Roth wrote.
As Roth stated, Inspectors General routinely publish information on the inner working of agencies—indeed, the key question often asked during audits and investigations, as in this case, is whether the decision-making process within an agency followed laws and regulations.
“With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion,” Roth wrote.
In prior matters, DHS has hobbled Roth’s office by excessively redacting his reports.
“The effectiveness of our oversight depends on our ability to issue detailed, balanced and public reports that accurately describe our findings and include recommendations to resolve them,” Roth said in congressional testimony earlier this year. “In 2014, I became concerned that the Department’s procedures for redacting OIG reports during component reviews reflected neither the letter nor the spirit of the Inspector General Act and significantly impeded the OIG’s effectiveness.”
Through his letter to Duckworth and Durbin, Roth may have turned the latest attempt to muzzle his office around on DHS. By attempting to keep this watchdog from barking, they may have handed him a bigger megaphone.
Food Fight: Fighting for Food Safety Without a Champion
Daniel Van Schooten
As you get ready to feast on turkey this Thanksgiving, one thing you can be thankful for is the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS).
FSIS, which has an annual budget of nearly $1 billion, is responsible for inspecting most meat and processed egg products, making it less likely that you will get sick from eating contaminated meat or drinking store-bought eggnog. FSIS inspectors check to ensure that companies are not selling diseased or otherwise contaminated meat—including turkey—aren’t adding harmful additives, and aren’t inaccurately reporting weight and ingredient information on the packaging.
Unfortunately, the position that oversees FSIS, the Under Secretary for Food Safety, has been vacant since December 2013. Successive administrations have failed to prioritize nominating qualified experts for the job, leaving it vacant for roughly half the time the job has existed over the last two and a half decades. “Someone was at the job just 13 out of those 24 years,” Richard Raymond, former Under Secretary of Food Safety during the George W. Bush administration, told Food Safety News earlier this year. “Not acceptable.”
Because the position has been vacant for almost four years, the Federal Vacancies Reform Act causes problems for anyone who might do the job in an “acting” capacity. The law prevents administrations from bypassing the Senate confirmation process by using “acting” officials to fill important vacancies long-term. With the top spot vacant, FSIS is currently led by the Acting FSIS Administrator, who is overseen by an Acting Deputy Under Secretary for Food Safety. As neither of these positions require Senate confirmation, acting officials can run both indefinitely if needed. A permanent Under Secretary would give FSIS a strong advocate who would report to Agriculture Secretary Sonny Perdue and could more easily coordinate with Perdue and with Congress, the Food and Drug Administration, the Centers for Disease Control, international organizations, and foreign governments.
As Raymond recently wrote, “This is the nation’s top food safety official. This person can affect the health and safety of every American except those strict vegans who eat no meat or poultry products. Other political appointees at the USDA may have an influence over the health and safety of a select few….But this one has a much broader scope of potential impact with dire consequences.”
Besides overseeing FSIS, the Under Secretary also oversees the US Codex Office, an interagency partnership that develops “science-based food standards” and is a key player in establishing global standards for biotechnology, growth hormones, pesticides, and additives in imported and exported food. However, the Trump administration announced that it will move this office out of the public health side of USDA and put it under a trade-focused office. FSIS’s influence on the global stage would be harmed if it were perceived as an advocate for American businesses, rather than an advocate for consumer health. An FDA spokesperson told Politico last month that they had raised concerns about the proposed move and warned they would have to “adapt” their relationship to the Codex Office if the move goes through.
Former Under Secretary Raymond has also spoken out against the plan. The fear that trade is being put over food safety is “confirmed by the lack of an Undersecretary for food safety who might have advised against this move, and even campaigned in the halls of Congress to maintain the status quo, a status that had very high international respect,” Raymond wrote in a recent op-ed.
Secretary Perdue knows first-hand what can happen when government regulators don’t adequately hold the food industry to account. While Perdue was governor of Georgia, a peanut-processing company in his state was responsible for one of the nation’s worst food-borne diseases outbreaks. Salmonella-tainted peanut butter produced by the company killed nine and sickened hundreds of others across the country.
Some reporting suggests that President Trump and Secretary Perdue may be close to nominating an Under Secretary for Food Safety, but there have been no official public statements to back that up.
Perdue and Trump should work to ensure that the federal government is as effective as it can be in ensuring the safety of the food we eat. They can do this by nominating a qualified individual to be the Under Secretary for Food Safety.