The Volokh Conspiracy

The American Civil Liberties Union (ACLU) sued the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA) seeking information about drone strikes.  The CIA filed a so-called “Glomar response,” refusing to confirm or deny the existence of material responsive to the ACLU’s request.  The ACLU then sued, and the district court granted summary judgment to the CIA.   Today, however, in ACLU v. CIA, the U.S. Court of Appeals for the D.C. circuit reversed, rejecting the CIA’s justification of its Glomar response. As the court explained:

The CIA has proffered no reason to believe that disclosing whether it has any documents at all about drone strikes will reveal whether the Agency itself — as opposed to some other U.S. entity such as the Defense Department — operates drones. There is no doubt, however, that such disclosure would reveal whether the Agency “at least has an intelligence interest in drone strikes.” . . . The question before us, then, is whether it is “logical or plausible,” . . . for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency “at least has an intelligence interest” in such strikes. Given the extent of the official statements on the subject, we conclude that the answer to that question is no. . . .

Given . . . official acknowledgments that the United States has participated in drone strikes, it is neither logical nor plausible for the CIA to maintain that it would reveal anything not already in the public domain to say that the Agency “at least has an intelligence interest” in such strikes. . . . The defendant is, after all, the Central Intelligence Agency. And it strains credulity to suggest that an agency charged with gathering intelligence affecting the national security does not have an “intelligence interest” in drone strikes, even if that agency does not operate the drones itself.

The case now goes back to the district court, which will consider whether the CIA may avail itself of any FOIA exemptions to refuse the ACLU’s information requests.

Paul Thacker writes that the Obama Administration has “failed miserably” to fulfill its promises of more open and transparent government. What’s changed, however, is that the press and self-appointed good-government watchdogs are less interested in covering such questions.

Whether it’s responding to Congress, media questions, or FOIA requests, this administration is no better than its predecessor. The big difference: Obama is a Democrat. And because he is a Democrat, he’s gotten a pass from many of the civil liberty and good-government groups who spent years watching President Bush’s every move like a hawk. . . .

the administration was able to make cosmetic changes and neutralize harsh disapproval with a classic Washington maneuver—inviting potential critics to the White House for meetings. The administration understood that many of these groups would be satisfied by getting meetings with the ethics czar, and would calculate that if they became too critical of the president that their newfound “access” would be in peril. So the watchdogs have scampered up to the White House time and again, hopeful that maybe with the next election, the next initiative, maybe even the next meeting, something would change.

We shouldn’t expect better from any administration — Republican and democratic administrations alike withhold pertinent information, abuse FOIA and resist disinfecting sunlight — but we should expect better from the self-appointed guardians of government transparency and accountability.

With my firm’s CFIUS experts, I put together a fuller analysis of the potentially significant CFIUS lawsuit I blogged earlier this month.  For those just tuning in now: the U.S. government’s Committee on Foreign Investment in the United States issued an order that blocked a Chinese-owned developer from proceeding with four wind-farm projects in Oregon; the developer sued, challenging not only the lack of transparency in CFIUS’s procedures and decision making, but also CFIUS’s authority to block  or unwind the transaction.

There have been a few noteworthy developments in the case.  First, just hours before the government was due to file its opposition to Ralls’ motion for a TRO, Ralls withdrew the motion after reaching an agreement with the government that allowed it to resume  preliminary construction at the wind-farm site while the suit is pending; the CFIUS order previously directed Ralls to “cease all [c]onstruction and [o]perations at the site.”  Although correlation does not imply causation, it suggests that the suit has improved Ralls’ position with respect to CFIUS.

Second, although correlation still does not imply causation, the day after the suit was filed, CFIUS sent a report to the President describing its assessment of the risks; by statute, once CFIUS sends such a report, the President has 15 days to  decide whether to take action (e.g., to block or mitigate the transaction).  The deadline runs tomorrow.

Because the  Foreign Investment and National Security Act of 2007 provides that the President’s actions and supporting findings “shall not be subject to judicial review,” there would be a question whether the President’s own actions (if any) would moot the lawsuit.  Ralls has a response (that the suit could continue under the “capable of repetition but evading review” exception to mootness doctrine. as CFIUS reviews each transaction in the first instance).  But  at a minimum, presidential action will be another factor the judge will have to consider as the case proceeds.

It will be interesting to see how things shape up.  For an insightful discussion of the matter, see China Hearsay.

It sounded like an April Fool’s joke: President Obama accepted a “transparency” award behind closed doors. Only as many are learning, it’s easier for a Presidential candidate to promise transparency than it is for the federal government to deliver. (Ditto for Congressional leaders.) As Charles Ornstein and Hagit Limor wrote in the Washington Post this week:

The day after his inauguration, President Obama promised a new era of “openness in government.”

“We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration,” he wrote in one of his first memos to federal agencies. “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

But the reality has not matched the president’s rhetoric. We, presidents of two of the nation’s largest journalism organizations, and many of our thousands of members, have found little openness since Obama took office. If anything, the administration has gone in the opposite direction: imposing restrictions on reporters’ newsgathering that exceed even the constraints put in place by President George W. Bush.

They note that the Obama Administration has led the way in ensuring that more government data is available online, but argue this is not enough to ensure real openness and transparency.

The Obama administration has put reams of data online detailing many aspects of government operations. This information is useful, but it’s merely a matter of the government posting what it wants when it wants, on sites most citizens would never think to visit.

Meanwhile, reporters’ questions often go unanswered. When replies are given, they frequently are more scripted than meaningful. Public employees generally are required to obtain permission to share their expertise, and when interviews are allowed, a media “handler” is listening in to keep control over what is said. And when replies come via e-mail, it’s unclear who has written them.

Their focus is on health policy, but others argue this is a broader problem. It seems that when it comes to government transparency, we’ve had more hope than change.

Last week, I posted a link to this video of one woman’s experience with airport security after asking to have her breast milk visually screened instead of x-rayed (as TSA procedures allow).  At the time, I said I’d like to hear the TSA’s side of the  incident, as the video appears to show TSA employees engaged in fairly egregious conduct.  I also contacted the TSA directly seeking their response to the incident and associated allegations.

The TSA has now responded on the TSA blog — and the response is not particularly reassuring.  Rather than provide any detail or clarification of the events on the video, the post acknowledges the woman in question was unhappy with her “screening experience” and “experienced an out of the ordinary delay,” claims the TSA investigated the incident, and reports that “the officers received refresher training for the visual inspection of breast milk.”  Really?  That’s it?  What’s offensive about the video is not the officers’ apparent lack of familiarity with the protocol for visual inspection of breast milk, but the apparent retaliation against a traveler who sought to avail herself of established TSA procedures.

If the TSA really has investigated this incident, it should, at the very least, make the investigation’s conclusions public and report on any disciplinary measures taken (or provide an explanation for the failure to discipline those involved).  If, as the TSA claims, it is official TSA policy to “strive to provide the highest level of customer service to all who pass through our security checkpoints” and its “policies and procedures focus on ensuring that all passengers are treated with dignity, respect, and courtesy,” then it should be more forthcoming about incidents like this.

UPDATE: It appears the TSA needs to provide “refresher training” about checkpoint photos as well.  Although the TSA permits photographing airport security checkpoints, TSA personnel keep detaining people who try to take pictures, as detailed here and here.

FURTHER UPDATE: The TSA denies reports body-image machines were taken out of use for Thanksgiving travel.

Has the distribution of simulus funds been influenced by political factors?  A study by Veronique de Rugy suggested a partisan tilt in the disbursement of stimulus funds; she found a strong correlation, but no definitive evidence of causation.  This prompted a response from Nate Silver at FiveThirtyEight.  de Rugy replied here, prompting a surreply from Silver. And here’s a comment from Nick Gillespie.

Here is de Rugy’s bottom line:

my take on the data has always been the following: The regression analysis shows that district’s party representation matters. However, I cannot say how much it matters compared to other factors (such as the formula used by different agencies). I said it loud and clear each time I presented my findings. . .

If it is not possible to nail down the precise amount that party affiliation matters, does anyone truly want to argue that there are no political factors influencing this stimulus or stimuli in the past (whether put into place by Republicans or Democrats)? There is a lot of literature in economic-history journals on similar patterns in New Deal spending, and it consistently shows that New Deal spending correlated rather strongly and negatively with the margin of votes in the previous election. Areas where Roosevelt won by a little got more New Deal bucks than ones where he won by a lot. (I was directed to one article in particular by a reader this morning, and it is worth looking into: Price V. Fishback, Shawn Kantor, and John Joseph Wallis’s “Can the New Deal’s Three Rs Be Rehabilitated?: A program-by-program, county-by-county analysis.” Explorations in Economic History 40 (2003), pp. 278-307.)

I am confident that a similar pattern can be found with President Bush’s stimuli, which, by the way, I was publicly and consistently against. . . .

my predisposition toward limited government and sound fiscal policy hardly means that I rig my data or designs. Rather, it simply means that I am particularly skeptical when anyone claims that politicians (of all parties) do not programmatically seek to advantage their allies while punishing their adversaries. That was a useful guiding assumption under George W. Bush and, under the current administration, no less so.

And Silver, who is skeptical, summarizes his view:

For me, personally, the notion that the allocation of stimulus funds could have reflected a broad-based and widespread effort to benefit districts represented by Democrats seems implausible — something which is well worth examining but something which should have received especially rigorous scrutiny. This is particularly so given that many of the funds were intermediated by state governments, not all of which are controlled by Democrats, as well as federal agencies that were constrained by formula rules.

There are two other variations that I find less impluasible:

I find it less impausible that the funds could have been directed toward those sorts of districts which tend to vote Democratic (e.g. as measured by PVI or by Obama vote share) — even after controlling for other demographic variabes — a possibility that de Rugy raises in her response but which was not the focus of her hypothesis. The difference is that that this could have resulted from a sort of unconscious bias in the design of the stimulus rather than a deliberate conspiracy.

I also find it less implausible that some *particular* projects could have been directed toward those districts that had a Democratic representative who was either especially influential or who a key swing vote in the House. (This is what we call pork.) However, de Rugy ran various tests on the types of Democratic districts that benefited from the stimulus and did not find any relationships with the characteristics of the Democratic members of Congress that tended to represent them.

One point on which they both agree is that the quality and comprehensiveness of the data on Recovery.gov is quite poor — we’re not getting our $18 million worth here.  As Silver notes:

I share de Rugy’s disappointment with the quality of the data available at recovery.gov. Frankly, I am not sure that testing her hypothesis to a peer-reviewable level of robustness is possible given the middling quality of data and the inherent ambiguity with how particular projects must be assigned to particular congressional districts.

CBS News has been reporting on what the government spent to send over twenty members of Congress, along with staff, spouses, and others, to the Copenhagen climate conference, and what they’ve uncovered isn’t pretty.  More here.

In other news, the Washington Post reports that Transportation Security Administration nominee Erroll Southers has withdrawn his name from consideration.  I assume the next nominee will not have violated the federal Privacy Act nor provide false testimony to the Senate Government Affairs Committee.  I think Radley Balko would also like the next nominee to replace the official TSA blogger.

Note: I don’t expect every nominee to have a spotless record.  We’re all human.  Nonetheless, some transgressions should disqualify individuals from certain types of jobs, even if not from high-level government positions generally.  Furthermore, I think it is reasonable to expect nominees to be truthful and forthcoming about their past transgressions, and not to submit false or misleading affidavits.  A particularly exacting standard this is not.

Congressional leaders may dispense with the traditional House-Senate conference to reconcile the two chambers’ competing health care bills in favor of less formal negotiations.  Whatever form the process takes, C-Span would like to be there.  On December 30, C-Span CEO Brian Lamb sent a letter to Congressional leaders requesting that his network be able to provide live coverage of the negotiations.  The congressional leadership has yet to respond.  According to Politifact.com, during the presidential campaign, then-Senator Barack Obama repeatedly promised to allow C-Span coverage of negotiations over health care reform.

UPDATE: Conferences for highly contested bills may be a thing of the past.

“There has never been a more open process for any legislation,” according to House Speaker Nancy Pelosi.  Even if true, that would not be saying much.  The Republicans did not set so high a bar.  Also, TPM: “Oh, Snap!”

SECOND UPDATE: Igor Volsky of Think Progress thinks televising any House-Senate negotiations would bea bad idea and Ezra Klein is conflicted.

Over at NRO’s Bench Memos, Matt Franck points out that insofar as the Reid bill alters Senate rules in order to entrench some of the bill’s reforms, there may not have been enough votes for cloture on the bill.

while cloture to end debate on legislation ordinarily takes “three-fifths of all the Senators duly chosen and sworn” (60 senators when all seats are occupied), cloture on any proposed change to the Senate’s standing rules takes “two-thirds of the Senators present and voting,” or 67 senators if all 100 are on the floor.  (Both of these requirements are in Senate Rule XXII.)  Ironically, the two-thirds rule can be easier to satisfy when the active quorum of senators is smaller; it could take as few as 34 senators when a bare-minimum 51 senators are present.  But any time more than 90 senators are present, it will take more than 60 votes to end debate on any statute that works a change in the Senate’s standing rules.  Thus a good argument can be made that the mere 60 votes obtained in the recent cloture vote were insufficient to end debate on the Reid bill—because it contains at least one change to the Senate’s standing rules.

This creates an interesting wrinkle.  Under Senate Rule XXII, “a measure or motion to amend the Senate rules . . . the necessary affirmative vote shall be two-thirds of the Senators present and voting” to end debate.  Yet there were only 60 votes for cloture on the Reid bill.  So unless there is some basis for giving special treatment to rules changes that are buried into other legislation, it would seem that either a) cloture was not achieved, or b) the entrenchment provisions do not actually alter the Senate rules.

The Senate health care bill contains provisions that purport to prevent a future Congress from revising portions of the legislation my majority vote.  Specifically, at pages 1019-1021, the bill requires a three-fifths vote in order to alter or repeal recommendations made by the Independent Medicare Advisory Board.  The relevant language is below.  As noted here, some Senators are upset by this provision.  My questions are 1) Is there much precedent for this sort of thing, specifically altering Senate rules in substantive legislation? and 2) Can the current Senate bind future Senates in this way?

(3) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS.—

(A) IN GENERAL.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, or amendment, pursuant to this subsection or conference report thereon, that fails to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

(B) LIMITATION ON CHANGES TO THE BOARD RECOMMENDATIONS IN OTHER LEGISLATION.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report (other than pursuant to this section) that would repeal or otherwise change the recommendations of the Board if that change would fail to satisfy the requirements of subparagraphs (A)(i) and (C) of subsection (c)(2).

(C) LIMITATION ON CHANGES TO THIS SUBSECTION.—It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.

(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.

(E) APPEALS.—An affirmative vote of three-fifths of the Members of the Senate, duly chosen and sworn, shall be required in the Senate to sustain an appeal of the ruling of the Chair on a point of order raised under this paragraph.

The AP reports President Obama is likely to sign an executive order before year’s end to create a National Declassification Center to review Cold War era documents for potential declassification and discourage the classification of documents going forward.  This would be a very welcome step.

CBSNews.com reports that, at least by some measures, the U.S. has exceeded the legally authorized debt limit, but this doesn’t mean the government is about to shut down or stop spending money — at least not yet.

The ceiling was set at $12.104 trillion dollars. The latest posting by Treasury shows the National Debt at nearly $12.135 trillion.

A senior Treasury official told CBS News that the department has some “extraordinary accounting tools” it can use to give the government breathing room in the range of $150-billion when the Debt exceeds the Debt Ceiling.

Were it not for those “tools,” the U.S. Government would not have the statutory authority to borrow any more money. It might block issuance of Social Security checks and require a shutdown of some parts of the federal government.

Congress is expected to increase the debt limit by $290 billion, if not more, in coming weeks.

UPDATE: The end of the story has a qualification I omitted: “Technically, not all of the National Debt is subject to the Debt Limit – a small percentage is exempt.”  The number cited in the story is the National Debt, not the Public Debt Subject to Limit, so as a legal matter we may not be “over the limit.”  However, as this graph shows, only a very small percentage of the National Debt is excluded.

N.Y. Times:

A spokesman for Senator Max Baucus, Democrat of Montana, said early Saturday that the senator nominated his girlfriend, a lawyer who worked for him at the time, for a United States attorney position last March.

The girlfriend, Melodee Hanes, worked for Mr. Baucus as his state office director and as a field director between 2003 and 2009.

Baucus eventually withdrew Hanes’ name from consideration.  Because he thought better of his obvious ethical lapse? Hardly.

Mr. Baucus and Ms. Hanes then decided that she should withdraw her name from consideration because the couple wanted to live together in Washington, Mr. Matsdorf said.

Matsdorf, it should be noted, is Baucus’s spokesman, and that’s the best he could do!

In his statement, Mr. Matsdorf said Ms. Hanes was recommended for the United States attorney position solely on the basis of her credentials.

“With an extensive background as a prosecutor and extensive legal experience, Ms. Hanes submitted her name for consideration for the U.S. Attorney position from Montana,” he said. “Her name was one of six that was submitted for review by Senator Baucus to an independent, highly respected Montana attorney who reviewed the applications. After an

extensive evaluation of all the applicants’ qualifications, Ms. Hanes was one of three applicants the third-party reviewer recommended for consideration.”

I don’t know anything about Hanes’s background, nor do I know how “independent” the third-party reviewer was. But spending the last six years working as a Senator’s field office and state office director (i.e., not even working as a lawyer) hardly seems like the kind of credentials one expects from a U.S. attorney candidate, and certainly not one purportedly recommended “solely on the basis of her credentials.”

And even if Hanes was the single most qualified individual in Montana for the position, it’s obvious that Baucus should have had no part in nominating his girlfriend to a U.S. attorney position. (The fact that Baucus and Hanes were both married (but separated) at the time is getting much of the attention in newspaper headlines, but is hardly the core of the public scandal.)

Baucus has abused his position and the public trust, and has proven himself unworthy of being a Senator.  He should resign.  Unfortunately, the voters won’t have a chance to kick him out until 2014.

UPDATE: Credit goes to the website Main Justice for breaking the story and forcing Baucus’s admission.  Hanes’s c.v. can be found here.  And there is this nugget: “‘She was recommended for the position because of a very close and personal relationship with Max Baucus and she withdrew because of a very close and personal relationship with Max Baucus,’ Thomas Bennett, Hanes’ ex-husband, told Main Justice.”

FURTHER UPDATE: The Daily Kos reviews Hanes’ background, and concludes that she and Bennett “left Iowa in disgrace.”  The Eighth Circuit later wrote about one of Hanes’s cases:

Every court that has reviewed this case has been struck by certain aspects of the trial and actions of prosecutors that violate the fundamental notions of fair play on which our legal system is based. For example, the Iowa District Court for Polk County, addressing Morales’s application for post-conviction relief, found prosecutor Hanes’s instruction to withhold medical records from the defense team prior to the second autopsy “suspicious at best” ....

The treating surgeon has now recanted his trial testimony, at least to the extent of placing any reliance on the opinions of the Medical Examiner [Bennett, Hanes's then-husband]. Defense counsel failed ... to make an adequate offer of proof regarding the romantic relationship between a prosecutor [Hanes] and the Medical Examiner [Bennett].

Finally, fwiw, Hanes lists herself on her c.v. as an adjunct professor at Drake Law School from “1990-present.”  Seems odd to me that someone living in Montana could be an active adjunct professor in Des Moines, and a search of Drake’s website retrieves no results for “Hanes,” nor do the classes she purports to teach appear in Drake’s course list.

ANOTHER UPDATE: Some commenters think I’m being too harsh on Baucus, given that Senatorial appointments are full of conflicts of interest, personal favors, favoritism to friends, relatives, political allies, donors, friends and relatives of donors, etc.  Perhaps.  But I suspect that if I knew more of what went on behind closed doors in the Senate, my reaction would not be that this absolves Baucus, but that more Senators should resign, not that Baucus should be off the hook.

About 600 or so.