Hot on the high heels of the Clinton email atrocity, where one individual determined for her own campaign and indeed for all of history which parts of her work as a taxpayer-paid government official would be forever sent down the Memory Hole, the White House announced it is deleting a federal regulation that subjects its Office of Administration to the Freedom of Information Act (FOIA), making official an unofficial policy under Presidents Bush and Obama to simply reject requests for records to that office.
And in case you proles still have not got it, the White House announcement comes in the middle of “Sunshine Week,” an annual nationwide celebration of access to public information.
And in case you proles really still have not gotten the message, the White House made the announcement on March 17, National Freedom of Information Day.
And in case you proles really, really still have not gotten the message, the Office of Administration handles, among other things, White House record-keeping duties like the archiving of emails and White House visitor logs. The impact of this action is thus significant — the public will have no means to seek disclosure of what is written inside the White House among public servants nor information on who visits the White House.
The White House said the “cleanup” of FOIA regulations is consistent with court rulings which hold that the office is not subject to the transparency laws such as FOIA. The government’s senior adviser for Open Government defended the policy by citing multiple instances of transparency.
The defense is more Newspeak. The problem with those “multiple instances” is that they were all voluntary, the release of information the government wished to release. The key to the Freedom of Information Act was that it could once compel the government to release information it did not otherwise want to release. That now, in Post Constitutional America, is gone.
Get it now?
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Though Madame herself has said nothing out loud (she did send one Tweet) about the bubbling scandal that she used private email to conduct four years’ of official business as Secretary of State, perhaps to help shield her communications from Freedom of Information Act (FOIA) requests, there has been no shortage of third-party defenders.
Let’s take a look at their arguments, and see how they sound.
It’s Not Illegal
Clinton supporters fired their first shots claiming she did nothing illegal, that current laws on using personal email were enacted only in 2014. And so if you have done nothing illegal, by definition your actions are legal.
As to the rules/laws/regulations, there are some clear issues.
Clinton as Secretary of State held herself to lower standards than the rank and file. According to eight pages of State Department regulations (5 FAM 440, 443.1), “All Government employees and contractors are required by law to make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency (Federal Records Act, or “FRA,” 44 U.S.C. 3101 et seq).” Those regs have been in place since at least 2009, most since 1995. There’s also another section that’s relevant. The State Department through a series of memos and internal interpretations clarified that persons using personal email for government business should forward copies to their official account as soon as practical. There are no provisions for maintaining a private archive at home and turning over a curated selection years later when asked.
There is also what the official custodian of U.S. government records, the National Archives and Records Administration, in the 2009 National Records Act, has to say, specifically in 44 U.S.C. Chapters 31 and 33 and the regulations issued in the Code of Federal Regulations (CFR), specifically Subchapter B – Records Management of 36 (CFR) Chapter XII. See Records management by agency heads; general duties (§ 3101), Establishment of program of management (§ 3102), Transfer of records to records centers (§ 3103) and Certifications and determinations on transferred records (§ 3104). Read as much of it as you care to; the requirements are long, specific and mandatory. A personal email server in your home does not fit the bill.
Here’s the shortest version: In 2009, regulations required that any emails sent or received from personal accounts be preserved as part of the agency’s records.
Everybody Does It
The question isn’t whether Clinton was allowed to have a private email account; she was, as secretaries of state before her did. The question is whether she was allowed to be the steward of the archives under the 2009 Federal Records Act. She was not. That’s where the violation occurs.
There also exists an important question of degree. Though Condi Rice denies ever using any personal email for official business, and Colin Powell famously used an AOL account more than ten years ago as part of his attempt to drag State into the late 20th century vis-vis technology, no previous government official in the known history of the United States has set up his/her own personal email server and used that exclusively for four full years. The scale sorta really matters.
The other side of the “everybody does it” argument is that it is a really poor argument. Anyone who has been a teenager has likely tried it (“But Mom, everybody drinks beer at my age, yeah I know I’m not 18 but everybody does it!”) and seen it fail. Defendants who went on to become convicted felons also know how unconvincing judges find it when people offer as their criminal defense that others have committed the same offenses but just didn’t get caught.
It seems sad that such an excuse is even thrown out there for a presidential contender, never mind that some are willing to accept it.
What Does it Matter?
Absent someone starting an actual courtroom prosecution, this is not about whether an actual crime per se has been committed. It is about what Clinton’s image of open, good government looks like, what her plans for a transparent administration in line with America’s democratic principles might come to be. It is about whether what she says connects tightly to what she does.
It also matters because Clinton’s email actions were deliberate, and included an effort to hide what she was doing. Her email domain was registered in a way to hide its actual ownership (still unknown), and was set up just as she re-entered public life. Clinton never disclosed the email account until the media learned of it. That lack of disclosure continued even as she testified about the tragedy in Benghazi, assuring the public her Department’s internal review represented the full story. It could not have; she still held the emails at that time.
She still has not spoken about all of this, despite it being one of America’s top news stories.
Will she tell the electorate why she set up a personal server and did not use government email? For argument’s sake we’ll agree she was allowed, but that does not tell us why, and why matters.
Why didn’t Clinton turn over her personal emails years ago? Why only recently,and only when asked?
As president of the United States, will she encourage or condone Cabinet level officials to employ personal email servers in lieu of U.S. government systems?
How did she weigh out the security risks of using a personal email service? Yes, the emails were said to be unclassified, but if they were indeed not sensitive enough to warrant high levels of security, then one hopes they will all be released now, unredacted.
Is the way she handled her email at State and now in the aftermath indicative of her approach to public service?
Those things are in part what people are supposed to be assessing when they vote.
Suck It People, and Just Trust Me
Clinton’s people have said they combed through all of the (unknown amount) of emails and pulled out 55,000 pages, delivered literally on paper to the State Department so as to impede electronic searches (sorry to the intern who has to scan them) and of course eliminate the metadata. They all swear cross-their-fingers-hope-to-die that those are all the official emails in the stash. Honest sir, there can’t be even one more we might’ve missed.
But… Huge gaps exist in the emails Clinton provided to a congressional committee investigating the 2012 attack in Benghazi, the panel’s chairman said. Republican Representative Trey Gowdy said his committee lacked documentation from Clinton’s trip to Libya after the attack despite a popular photo image of her using her famous Blackberry during a flight to that country. “We have no emails from that day. In fact we have no emails from that trip,” said Gowdy. “There are huge gaps.”
So maybe Clinton’s staff missed just a few?
It’s All Republican Attack Cheap Shots
Which brings us to the all-purpose Clinton excuse: whatever bad things have happened to her and/or are being said about her are all a partisan attack, perpetrated by her Republican enemies, just like everything else from Vince Foster/White Water to 2008’s lying about being under fire in Bosnia to everything Benghazi.
And there is truth in that. It is without question that the Republicans will seize on anything negative about Clinton they can find. It is also without question that the Democrats will seize on anything negative about Bush or whoever they can find. Such is the nature of politics in America.
But that doesn’t mean what is under discussion is not true and it does not mean it does not matter. The easiest way for Clinton to escape answering questions is to stifle any discussion (“What does it matter anymore anyway?”) There are things that are worth talking about here, questions that need answers, regardless of whether you lean right or left. Don’t get sucked down the tunnel of partisan politics encouraging you to shut your brain off.
Think about it.
BONUS THOUGHT EXPERIMENT: Wouldn’t it be great is some mid-level State Department staffer set up her own email server in her apartment next week and sent a message to everyone at work she interacts with saying she was no longer going to use her official email account? Wouldn’t that be a hoot?
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
The concept behind it dates right back to the Founding– people in a democracy must know what their government is doing in their names. Such an informed citizenry (in Jefferson’s words) is essential to our system of government. How else can we know how to vote, what to support, what to oppose?
Freedom of Information Act
The Freedom of Information Act (FOIA) began with the general premise that except for some obvious categories (serious national security things, personal information and the like) the default position should be that everything the government has should be otherwise available to the public. The ideals behind FOIA were so grand that there wasn’t even a request form created. Citizens would (pre-Internet) simply write a letter to a designated FOIA office at say, the Department of State, saying what records they sought and the federal agency would send those records out to them. The official deadline for response was 30 days. If the records broadly served the public interest there wasn’t even a fee. Otherwise, the only cost was to be for copying.
FOIA in 2014
The FOIA system today works very differently. Agencies are generally loath to release anything, and so create roadblocks to legitimate FOIA requests. Some still require original signatures and won’t accept requests online. Others demand hyper-detailed information on the request, such as the precise dates and titles of documents whose dates and titles may be classified and thus unavailable– Catch 22. Most agencies regard the deadline for a response simply as the time period to send out a “request received” note. Many employ very, very few staff to process requests, leading to near-endless delays. The CIA won’t directly release electronic versions of documents; if a digital format is requested, the CIA prints out the original, then scans it into a PDF, significantly raising the costs to the requester while delaying delivery. Even when a request is fulfilled, “free” copying is often denied, and reproduction costs exaggerated, further hurdles to be overcome.
My own FOIA requests ahead of a possible lawsuit to my then-employer, the Department of State, were routinely returned for “more identifying information” and ultimately were assigned a “fulfillment date” of several years into the future, precluding their use in any legal setting.
John Young, who runs the web site Cryptome and who is a steadfast FOIA requester, stated “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requestors and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results. In short, it is a confidence game.”
Individual states have started to follow the federal government’s example. The Michigan Department of Education said the least expensive employee able to fulfill a specific Freedom of Information Act request has a total compensation of $116,917 a year. In 2009, the Michigan State Police said in a FOIA response to the Mackinac Center for Public Policy that materials related to the spending of Homeland Security grants would cost $6.8 million to fulfill.
What is the State Department Hiding?
Chief among federal agencies which do not fulfill their legal duties under FOIA is the U.S. Department of State. Of the top fifteen agencies in terms of FOIA requests received (representing over 90 percent of all FOIA requests,) new research shows that State ranks dead last, with a score of 37. Homeland Security bests State with a 51. The Department of Justice beats State with an 81.
One FOIA case in particular reveals the depth to which the State Department seeks to withhold information from the public.
In 2012, a Gawker editor filed a FOIA request with the State Department, asking specifically for all the emails between Hillary Clinton confidant/spokesperson Philippe Reines and reporters from 34 media outlets, including the New York Times and the Washington Post. Agencies are required to maintain copies of official communication by the FOIA– a “system of records.” Not having such as system in place is a violation of federal law. Emails are clearly included in what must by law be archived.
Nearly a year after filing his FOIA request, the Gawker editor finally recieved a response from the State Department. “After a thorough search,” the State Department wrote, “no records responsive to your request were located.” The letter did not explain why the Department could not locate emails between reporters and someone whose job it was to correspond with reporters. Gawker is appealing the action by State.
Despite State’s inability to locate a single email between Hillary spokesperson Philippe Reines (he is working on Clinton’s “transition staff” at present and is expected to play a major role in her administration) and any reporter, we found one, on the internet. The email exchange is with now-deceased reporter Michael Hastings, concerning Benghazi. Reines concludes the email chain by telling Hastings “And by good day, I mean F*ck Off.”
But All is Not Lost?
There is good news. Everyone’s favorite part of the State Department, Diplomatic Security (“Stop Calling Us the Stasi, We’re Not that Organized”) is hiring. Specifically, just this week they listed an opening for a Freedom of Information and Privacy Act Division Chief responsible for planning, managing, directing and supervising the staff, oversees the development of the Bureau’s policies, and develops the Division’s plans and strategies.
And righteous bucks. Depending on your civil service grade, this job starts at more than $100,000 and zooms up.
Most Transparent Administration in History
Obama’s early pledge to oversee the most transparent administration in history is by now a punch line in every pundit’s act. But let’s put some numbers to the joke.
In the past year, the government cited national security as a reason to withhold information sought under FOIA 8,496 times, a 57 percent increase over a year earlier and more than double Obama’s first year, when it cited that reason only 3,658 times. Even the Agriculture Department cited national security six times, followed by the Environmental Protection Agency doing it twice and even once by the National Park Service. Five years after Obama directed agencies to less frequently invoke a “deliberative process” exception to withhold materials describing decision-making behind the scenes, the government did it anyway, a record 81,752 times.
Government is not made up of dynamic, freethinkers. Most folks inside the federal government are, or become, a little less bold, a little more gun shy, a lot more concerned about what they say and the consequences of what they do. They are not folks who by and large like to stick their necks out. So a clear pattern of a government essentially refusing to follow the FOIA law isn’t happenstance.
It’s policy now in Post-Constitutional America.
Copyright © 2015. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
Diplopundit has a copy of the (leaked) revised rules for the use of social media by State Department employees. The rules have not been formalized, so let’s hope some smidgen of change is still possible, but my own sources confirm that what you can read about here are authentic. These rules are horrible and childish, a pathetic over-reactive lashing-out over how poorly State handled the media swirl around my book We Meant Well.
For example, there are some wonderful catch-all “standards” that would not pass legal review at a junior high student council but which will control America’s diplomats. Here’s one:
Employees at all levels are expected to exhibit at all times the highest standards of character, integrity, and conduct, and to maintain a high level of efficiency and productivity.
Leaving aside the yucks so obvious even I won’t crack jokes about them concerning efficiency and productivity, what definitions and details will define and explain what the hell the “highest standards” of character, integrity, and conduct are? For example, is lying about what happened in Benghazi a highest standard? What about making a sex tape on the roof of the Baghdad embassy? Shooting an unarmed man in a McDonald’s? Wasting billions on faux reconstruction projects in Iraq, Haiti and Afghanistan? I guess all that is OK just as long as you don’t Tweet about it.
The new standards also seek to codify that what can’t be disclosed is “protected information.” In addition to the legally-based actual USG-wide standard classifications of Top Secret, Secret and Confidential, the State Department created its own unique category called Sensitive But Unclassified (SBU). State then declared that everything it does on its Unclassified network is actually SBU, meaning under the new rules “disclosing” an email from Diplomat A to Diplomat B asking when lunch is will be a violation. FYI, State is also seeking desperately to invoke the SBU rule against Bradley Manning to make his alleged Wikileaks leaks seem more horrible. State also cited my own release of SBU information (in my case, a Diplomatic Security memo written to me about me) as justification for suspending my security clearance. Of course such nonsense makes no sense in that outside of the State Department possession of such documents is not a crime, and of course as unclassified documents they should be all available under the Freedom of Information Act.
The State Department will have the most restrictive social media rules of any Federal agency under these new standards, proposing, among other amazing things, that all Department employee Facebook posts and Tweets of “matters of official concern” (whatever your boss chooses to define that as) undergo a two-day review process. Such rules will either require hundreds of full-time reviewers, or, most likely, be ignored in most instances and hauled out selectively when needed to punish an individual. Such selective application begs for a lawsuit.
These changes show clearly that the State Department fears what its own employees will say about it, what truths they will reveal. Like the corrupt Communist bureaucracies of the old Eastern Europe, more and more resources will be devoted to monitoring one’s own workers, with snitches no doubt favored and promoted for “outing” social media deviants. Perhaps next Foreign Service children, no doubt more computer-savvy than their diplo-parents, will be schooled in spying on what Mommy and Daddy do online. One can only see this as positive, the bureaucracy at State consuming itself, with no one in the organization willing to trust anyone else. Whatever shreds of free speech credibility abroad are left will clearly dissipate. One can hear laughter in Beijing. 21st Century Diplomacy indeed.
Really, these people are pathetic. Very sad, very paranoid, for a once-distinguished organization that purports speak for free speech around the globe. We’ll keep all this at hand for 2016 as a further example of how Hillary Clinton really rolls. And when are we going to stop saying “1984-like” and start saying “State Department-like”?
The Washington Post is also covering this story. It quotes State Department deputy spokesman Mark Toner as saying with a straight face the changes are merely updates “to recognize the dynamic and decentralized nature of the 21st century information environment.”
For those reading this blog from Foggy Bottom, can you smell it? Something different in the air? No, no it’s not napalm from the latest group of grateful Muslims freed from another tyrant’s grip by American truth drones, it’s me.
I’m done stinking up the place. As of midnight yesterday I officially retired from the State Department. You’re all freed from the chaos and tyranny I was accused of inflicting. From the statement “officially retired” you may safely assume that I in fact retired, which is a different word (check the dictionary) from fired, or arrested, or jailed under the Espionage Act. State failed in all those options, in fact in every judicial and other action not totally within its own control. In other words, no one but State’s own incestuous minders was willing to believe I did anything wrong. State could only lash out, limply as it turns out, with its self-controlled bullies from Diplomatic Security, taking away my security clearance because it was the only punitive thing they could actually get away with that had no outside review, no judicial relief and no appeals process.
Pride people, pride makes us what we are. People first.
Along the way, the Department’s blind-leading-the-blind stumbles did help create publicity, which in turn sold books, lots of books that were full of stuff they did not like, a perfect example of how what matters most inside the State Department is what matters inside the State Department.
The great news is that the tumor has been cut out, the boil lanced, the pus-laden throbbing glob that was me is gone. You should already be seeing the many improvements and new opportunities around the State Department.
My lawyers and I have filed Freedom of Information Act requests and a request to the Office of Management and Budget, as well as with the Senate Foreign Affairs Committee, asking what the cost of this year long, multi-Bureau effort to get rid of me might have been.
While it may be several hundred years before we get a response, we can do some quick figuring: I was paid a full year’s salary and benefits to stay home, Diplomatic Security ran full field investigations and a phony security clearance “update” charade, an investigator from another office was sent all the way to Iraq to dig for dirt on fake charges even State had to drop for lack of a tether to reality, multiple sub-grievances and appeals were prosecuted by State, audits of everything I did fishing for mud to sling, and of course they probably had to buy at least one copy of my book to use to search for the classified info that wasn’t there (full retail was $25 on the book). Factor in the electronic surveillance costs, the numerous well-written denials of my previous Freedom of Information Act requests, plus the man hours of pain and commuting costs when I was summoned in to get yelled at by my paper tiger boss early on. We’ll wait on the full FOIA response, but until State challenges the number, I’m throwing out about a quarter of a million dollars of tax payer cash spent on… on… trying to take away an American Citizen’s right to free speech.
Well, they failed.
I believe more strongly now than I ever have in the importance of freedom of speech, including, no, especially including speech which appears dangerous, offensive and wrong to many people. As a nice way of reminding the State Department of its obligation to support free speech, I proudly wore my “Free Bradley Manning” T-shirt to work on my last day. Here’s a photo.
Now, a lusty cry of “Hillary in 2016!” from everyone, and we’ll keep moving on.
I get an email like this one every week from the State Department.
They apparently have someone/someones’ whose job it is to cut and paste articles from this blog into a handy weekly gazette format. Since I am a certified teleworker for the State Department, as well as the author of these blog posts, perhaps I could be tasked directly with making up the gazette each week as a way to save some money in these tough budgetary times, though apparently the State Department has enough people working for it that someone has as their daily duty to read and cut and paste my blog fodder.
Entry Level Officers at the State Department, be cautious if someone offers you a “social media” job!
Be sure to see that though the gazette is for last week, they also mention a Financial Times interview with me from December. That one must have slipped through their poorly-worded Google Alert! See, if I was making up the gazette myself I would have definitely caught that one, just saying.
Of course, why bother to cut and paste the gazette when all the articles are just right here online anyway?
When I was interrogated about this blog by the big bad wolves in Diplomatic Security, they at least had printed out, in color, the hundreds of articles from this blog’s inception in April 2011, a serious phone book-sized stack o’ dead trees. State and technology have never really gotten along well I guess.
Plus the gazette format really does not take full advantage of the medium, as it does not include the funny/ironic photos and occasional cartoons I feature on the blog. I mean, this blog post does not work at all without the visuals. Oh well, that’s a bureaucracy for you, no real sense of humor.
Just for grins, I have today filed a Freedom of Information Act request for all of the past gazettes. Let’s see how long it takes State to respond and if they respond with some sort of Ministry of Silly Walks-like excuse about why they won’t release to me my own writing.
And finally here’s a cartoon especially for the anonymous troll inside State who compiles my weekly gazette.
Once upon a time, our government did one of the coolest things ever, creating the Freedom of Information Act (FOIA). In simple terms, the Act said that absent one of nine specific reasons not to, most parts of the US Government had to release records and documents requested by the public. This opened the door for journalists, scholars and everyone else to see what the government was up to, and to expose government lies, corruption and other naughty stuff.
Over time, the government has gotten clever about applying those limited exceptions (which can be appealed). The government has also figured out that simply d-e-l-a-y-i-n-g processing of requests is an even better way to make them go away.
As readers of this blog know, the State Department has used a number of bureaucratic tools to retaliate against me for speaking out on their crap-fest in Iraq.
So, to try and defend myself, I filed a FOIA request in June 2011. The request was very specific, asking for records kept in the Director General’s office (head of HR for State), and for any emails between that office and my then-supervisor. Nothing too involved: everything was either electronic or in a domestic office. The time period was short, and the records all pertained to just me, my book and this blog. No third party agencies involved. Nothing should have been classified. And it is not like they did not know my name in that office.
After not hearing back from anyone since I filed the request seven months ago, I inquired. Here is the emailed response:
I am responding to your e-mail dated January 18, 2011 inquiring about the status of your Freedom of Information Act request. We have assigned case number 201105098. Please make reference to this case number in the future. We are awaiting response from the pending searches. The estimated completion date for your case is January 2013.
I wrote back to the nice emailer person, double-checking the date was 2013, a year from now. She quickly responded, even adding it would be January 31, 2013.
So that means it will take State some 18 months, 540 days, to respond, and that the delay is caused by the Director General’s office not responding to the FOIA folks.
OK, bureaucracies are slow, so maybe somehow 540 days isn’t that uncommon, right? No.
The State Department’s own FOIA accounting (they are required to produce an annual report; 2010 is the latest one online) shows that for “simple” FOIA requests, the average number of days for a response is 144. For complex ones, the average number of days is 284 (there are a couple of cases in there pending now into their eleventh year, wonder what those are asking for, the nuclear launch codes?).
For simple requests like mine, out of 10,308 requests processed, only 50 took more than 401 days.
Something is Wrong
Without a doubt there exists a file with my name on it in the Director General’s office. It will not require a spelunking expedition to locate it– it is probably on his desk as we speak. Of course mine is not the only request received, and judging by my case number might even have been the 5098th taken in last year, although those were spread among the entire Department.
Still, why will it take 18 months to conduct that search? Hard to defend yourself under these circumstances, or… is that the plan? And these are the people America pays to export democracy?
Look, I’ll help, it is in the bottom drawer marked “V.” I’ll even drop by anytime with Krispy Kremes for the office and make my own copies, ‘K?
Bradley Manning or someone released a bazillion classified State Department cables to the world via Wikileaks, State Department would not confirm any of the cables as genuine, blocks access inside Foggy Bottom where people do have security clearances and could thus legally read the cables, and takes away my security clearance for linking to one of those cables on this blog.
Then those bad, bad boys and girls at the ACLU file a Freedom of Information Act (FOIA) request and lawsuit seeking twenty-three cables that had been previously disclosed by WikiLeaks and widely distributed online and in the press.
And what does the State Department do?
It released eleven of the ACLU-requested documents, with redactions. That means that all you or anyone on earth need to do is compare the State-released version with the Wikileaks-released version, and you’ll know exactly what information
is, er, was considered secret.
You could do a lot of Googling around to compare the two sets of documents, but if you don’t want to, someone has already made the pairing for you.
In the words of the ACLU:
The State Department has reversed course and acknowledged that at least some of the cables can be released to the public without harming national security. That’s what we’ve been saying all along (and, according to reports, what some government officials have been saying too).
The State Department’s response is particularly astounding because it reveals a roadmap of the government’s classification decisions. The information released by the State Department is perhaps more sensitive than the cables themselves, revealing what the government thinks the public should and should not be able to see.
Even the staid New York Times was mildly gobsmacked:
Of course, by redacting passages the public is free to read, the State Department has called attention to what it considers the most diplomatically touchy parts of cables. At a glance, its reasoning is not obvious.
ACLU’s conclusion after comparing the redactions with the full texts is not pretty:
At its most harmless, [State’s] selectivity reveals a penchant for superficially advancing national image at the cost of transparency. At its worst, it is yet another instance of the government making false claims of secrecy to avoid legal and political accountability.
And special thanks to the ACLU for mentioning my own struggles with State; it is comforting to know they have my back.