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


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  • icon
    Ninja (profile), 10 Aug 2015 @ 11:52am

    Accountability is key to keep companies, agencies, Governments etc working as they should, with ethics and as little corruption as possible. The only explanation for someone deciding to do away with accountability channels is that there is something wrong going on and it has to be hidden. What is going on, I ask you, Congress?

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 10 Aug 2015 @ 12:29pm

    From another point of view...

    Instead of whining that they can find no evidence of wrong-doing by the agencies they are supposed to oversee, they can turn that around and state that they can find no evidence of the agencies working within their mandates, and therefore should be de-funded and shut-down immediately.

    They give us no evidence to the contrary, we must assume that they are violating every rule, and so far, that is what all the evidence that eventually comes out shows.

    If the agencies can't PROVE that they are working within the rules - bye bye.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Aug 2015 @ 1:22pm

      Re: From another point of view...

      ...no evidence of the agencies working within their mandates...


      Which mandates?

      If you mean those mandates found in United States Code (USC) those are so broad as to mean anything, or nothing. These are the mandates established by Congress through legislation.

      If you mean those mandates found in United States Code of Federal Regulations (CFR) those are supposedly by authority of Congress but are actually written by executives, administrators, and even line employees, many of whom are not subject to Congressional approval.

      And don't think for one moment they won't pull the same thing many companies do on their employee duties: "Any other tasking that may be assigned."

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2015 @ 1:19pm

    From wiktionary
    oversight ‎(plural oversights)

    An omission; something that is left out, missed or forgotten.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 10 Aug 2015 @ 1:32pm

    Working as intended

    The 'oversight' was never meant to actually be effective, it was merely a sop thrown to the public to keep them from looking to closely at what was going on.

    "Look, these programs and agencies are under strict oversight, so of course you don't need to worry your heads about what they're doing, because if they do something bad, then it will be brought to our attention and we can do something about it."

    The 'problem' was that some of those providing 'oversight' actually thought that they were supposed to, you know, provide oversight, rather than just do nothing, look busy, and release glowing reports about how 'everything is going great, no problems here' every so often.

    Clearly they were 'misinformed' as to the actual nature of their job, so steps needed to be taken to make sure that they weren't able to continue with their 'mistakes', and hence the requirement that they be forced to beg those that they were tasked with watching for the information they needed to do their jobs.

    It wasn't an accident, or a slip up, it was a blatant move to make sure that the 'oversight' would remain completely ineffective by ensuring that nothing of any real value would ever cross the desks of those tasked with 'oversight' positions.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Anonymous Coward, 10 Aug 2015 @ 2:24pm

      Re: Working as intended

      It wasn't an accident, or a slip up, it was a blatant move

      Absolutely, and done in such a way that it will take the general public years to understand what actually happened.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2015 @ 1:57pm

    This has reached the technical definition of a farce.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2015 @ 2:01pm

    When all other options have been tried

    How long do these agencies think they can keep this up before even the most level minded people start to consider more drastic options to get their government under control?

    reply to this | link to this | view in chronology ]

  • icon
    Dismembered3po (profile), 10 Aug 2015 @ 2:48pm

    Peace Corps?

    "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..."

    What? What the hell is the Peace Corps doing that it feels like it needs to hide from its OIG?



    ...Oh. Wait.

    reply to this | link to this | view in chronology ]

  • identicon
    TDR, 10 Aug 2015 @ 4:35pm

    Clearly the OLC is encouraging fraud and corruption, and this decision is proof of that. Therefore, the IG's should investigate the OLC itself and have it prosecuted on corruption charges.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2015 @ 8:03pm

    I keep saying it but choices like this will just lead to tyranny and outright revolution

    reply to this | link to this | view in chronology ]

  • identicon
    Justme, 10 Aug 2015 @ 11:27pm

    Messaging. . .

    This might be off point, but it's amazing how the messaging is almost more important then substance of your argument.

    Make the case for getting access to sensitive material that require to do your job and congress will respond one way. Make the case by referencing personal responsibility, patriotic duty, and love of god and congress can't push it through fast enough.

    What a mess.

    reply to this | link to this | view in chronology ]

  • identicon
    Answered, 11 Aug 2015 @ 6:19am

    Who Watches The Watchers

    The question who watches the watchers has finally been answered: We issue them a mirror and ask if there is any wrongdoing they WANT to report.

    reply to this | link to this | view in chronology ]

  • identicon
    GEMont, 11 Aug 2015 @ 1:15pm

    The Fox Guards the Chicken Coop

    "The OLC had decided government agencies shouldn't be
    accountable to the public, and its excuse is 'security.'
    "

    Best description for Fascism I've seen come out of the Federal Government this week.

    Face it America. You have been invaded and conquered - by your own Wealthy Elite - the very people you have been trained since childhood, to look up to and hold in highest esteem, and who you desire to become more than anything else on earth.

    Remember, you cannot fix something until you, first, admit its broken and second, find out what parts broke.

    For Fascism to fully succeed, you just have to keep on pretending that all the problems you face are due to the "Gays", or the "Chinese", or the "Street Gangs", or the "Conspiracy Nutters, or "drugs", or.... whatever specific single thing the Fascists running your country have convinced you to believe is the "real problem".

    ---

    reply to this | link to this | view in chronology ]


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