Gawker FOIA's Rumsfeld's FOIA request

Since Donald Rumsfeld announced that his book would be accompanied by a trove of previously classified documents, I've been wondering how exactly these documents were declassified. Gawker took an interesting approach: filing a Freedom of Information Act request seeking whatever Rumsfeld sought under FOIA.

The result? Roughly one hundred pages of memos form 2002 and 2003, most of which did not make it into the document library on Rumsfeld's website. I've only had a chance to take a cursory look at them, but many of the documents are on key topics involving Iraq and postwar planning.

Outraged Moderates: Egypt Edition

DADT finally bites the dust

The Don't Ask, Don't Tell repeal feels really good, in part because that policy has made the military look backwards, when it has given us a lot of social progress (see roles in integrating the US, creating the middle class, inventing the internet and GPS, and pushing through energy efficient technologies).

What I wish Jim Webb would say about the mosque

Some pundits have made fun of Jim Webb's deep interest in his Scotch-Irish ancestry, which manifested itself most fully in Born Fighting: How the Scots-Irish Shaped America. But in addition to getting people talking about the almost-forgotten group again, and helping establish him as a candidate in one of the most Scotch-Irish states, the book stands as one of the best explorations of the roots of "red state" values. As a North Carolinian whose family tree is largely Scotch-Irish, it offered one "oh, that's where that came from" after another about familiar political and cultural values, some of them what you would call conservative values, but many of them purely apolitical things. (Here's a post from back when Webb won the Virginia primary).

It's not hard to see strains of Born Fighting in Webb's political career. In fact, one could describe his first term in the Senate as an experiment in adapting what he sees as core Scotch-Irish values into Democratic policy stances. As the title suggests, much of the book involves the key role military service has played in Scotch-Irish culture (and the key role the Scotch-Irish have played in the military); in 2008, Webb was the lead sponsor of the revamped GI bill. Born Fighting emphasizes the group's salt of the earth egalitarianism and hatred of elitism; in his 2007 response to the State of the Union, Webb lamented that corporate CEO pay had risen from 20 times that of the average worker 40 years ago to 400 times that today. Finally, Born Fighting discussed widespread opposition to affirmative action programs among Appalachian whites, on the grounds that most of their ancestors never owned slaves; last month, he sparked a controversy by calling for an end to race-based affirmative action, and advocating for a class-based system in its place (that's a loaded issue, and I'm going to abstain from further comment now, except to note that Webb's op-ed did say that America still owed a debt to African-Americans).

The current controversy over the construction of an Islamic cultural center two blocks from ground zero provides Webb with his best opportunity yet to frame a policy stance in the context of Scotch-Irish history. Religious discrimination was one of the major root causes of the Protestant migration from Ulster to North America during the 1700's. Although the Penal Laws imposed by the British were designed primarily to disenfranchise Ireland's Catholic majority, they also discriminated against the Protestants in Ulster, the vast majority of whom were Presbyterian. By the late 1720's, Protestants were barred from voting and holding office, and only marriages performed by the Church of England were legally recognized, meaning that Presbyterian ministers could not wed members of their own congregations. That decade saw the first major Protestant migration from Ulster to the American colonies, which promised religious freedom and economic opportunity. One sermon given to a ship departing Ulster stated the reasons for leaving as follows: "To avoid oppression and cruel bondage; to shun persecution and designed ruin; to withdraw from the communion of idolators; to have opportunity to worship God according to the dictates of conscience and the rules of his word." By the end of the century, approximately 300,000 Ulster Protestants had left for the American colonies, filling in the western parts of the Mid-Atlantic states and then moving south and westward.

As far as I can tell, Senator Webb has not made any public statements about the mosque debate. If he does decide to comment on the issue, he could provide a strong defense of religious freedom by hearkening back to the discrimination against his Scotch-Irish Presbyterian ancestors in Ulster, and their subsequent migration to the American frontier. Referencing the religious discrimination against his own ancestors could help reframe the debate as a matter of core American values dating back to, and actually before, our Nation's founding - not merely a matter of political correctness, as many conservatives see it. And it might even remind a few American Protestants, especially those of us from the South or Appalachia, that some of our ancestors have been on the other side of the coin before.

MMS FOIA documents: No smoking guns

In the months since the BP oil spill, the Bush administration has come under fire for setting the scene by failing to properly regulate offshore drilling. That shouldn't come as a surprise, given that administration's "deregulate everything" approach to regulation, its closeness with energy industry lobbyists, and its tendency to decide on a desired policy outcome before looking at the relevant data. And then there's the insane Bush-era ethics scandal at the very agency in question, which included sex between agency officials and oil industry representatives and widespread cocaine use on agency time.

Much of the criticism related to the BP spill has centered around a 2003 decision by the Department of Interior's Minerals Management Service (MMS) not to require oil companies to use acoustic switches on offshore rigs. (Note that the MMS's name has been changed to the Bureau of Ocean Energy Management, or BOEM, but most reporting about this issue has continued to refer to the agency as the MMS). Basically, all modern oil platforms have a blowout preventer (BOP in industry speak) with a hard-wired controller the platform workers can trigger. Then there are a variety of secondary BOP control intervention systems, including dead man switches (which are supposed to automatically close the valve in the event of an explosion), remotely operated vehicles (or ROVs, which can be used to close valves), and acoustic switches (which use sound waves to send a signal from the surface down to the valve).

BP's Deepwater rig had a dead man switch, which didn't work, and the company has used ROVs throughout the cleanup process. However, the BP rig did not have an acoustic switch. When it came to the public's attention that Norway and Brazil - two of the major offshore-drilling countries - both require acoustic switches, and that the devices only cost $500,000, a fraction of the cost of cleaning up the BP spill, everyone from environmentalists to the Wall Street Journal began asking why US rigs do not use them. (Personally, hearing that a developing country like Brazil has stronger environmental or safety regulations than we do is a huge red flag, and I would imagine that wrinkle to the story played a large role in the public anger over this issue). Not surprisingly, the focus quickly turned to the Bush administration, which even many conservatives would admit had an especially cozy relationship with Big Oil.

In March 2000, at the tail end of the Clinton administration, the MMS had issued a safety alert saying that the agency "considers a backup BOP actuation system to be an essential component of a deepwater drilling system, and therefore expects OCS operators to have reliable back-up systems for actuating the BOP." While some critics have described the 2003 decision not to require acoustic switches as a reversal of this 2000 safety alert, it is important to clarify that the 2000 alert did not specify which type of secondary BOP control intervention system platforms should use, but merely stated that they must have some type of back-up.

In 2003, the MMS looked into the issue of whether to require acoustic switches specifically, commissioning a study by West Engineering Services, Inc. (PDF) titled "Evaluation of Secondary Intervention Methods in Well Control." The study concluded that "[a]coustic systems are not recommended because they tend to be very costly, and there is insufficient data available on system reliability in the presence of a mud or gas plume." After the study, the MMS decided not to require acoustic switches. The question that remains is to what extent Big Oil influenced this decision.

This is how the Wall Street Journal described the MMS's decision not to require acoustic switches:

The U.S. considered requiring a remote-controlled shut-off mechanism several years ago, but drilling companies questioned its cost and effectiveness, according to the agency overseeing offshore drilling. The agency, the Interior Department's Minerals Management Service, says it decided the remote device wasn't needed because rigs had other back-up plans to cut off a well.

So according to the Wall Street Journal, even the agency itself admits that its decision was influenced by industry lobbying. But it also had West Engineering's 2003 study backing its decision, and the concerns voiced in the study over thick mud or gas plumes potentially blocking sound waves seem like a legitimate issue to this non-engineer. In an effort to ferret out any evidence of political or lobbying influence on the study, I submitted a FOIA request seeking all communications between William Hauser, the MMS's Drilling Research Coordinator at the time, and West Engineering Services, Inc. regarding the study. If the MMS was under pressure from the White House or industry lobbyists to get a certain result, these communications might reflect that in some way (it wouldn't be that surprising - that same year, Defense Department emails discussing Halliburton's no-bid contract for oil services in Iraq described how the deal was "coordinated w VP's office").

To the credit of the Department of Interior's FOIA office, I have never received documents from an agency faster than the response to this request. The response consisted of 16 pages of emails and one CD containing 11 documents (primarily consisting of the report in multiple formats). The verdict? No smoking guns here. From these documents, there is no evidence that the outcome of West Engineering's study was influenced by the White House or lobbyists, or that MMS officials were pulling for one outcome or the other. Most of the emails do not contain anything substantive, and the few that do seem to reflect the kind of approach one would want government agencies to use when conducting research.

For example, in this email, John McCarroll, Drilling Engineer for the Houma district of Louisiana, notes that the study gives the dead man, autoshear, and ROV secondary intervention systems high marks, apparently changing his perception (and/or the agency's perception) of ROVs.


I've posted the main email chain to my Flickr account. The other emails primarily discuss recommended changes to the initial draft of West Engineering's study, mostly corrections to citations of US law or regulations. None of the MMS's recommended changes deal with changes to the study's evaluations of the competing secondary intervention systems.

In conclusion, these FOIA documents don't provide any smoking guns about the extent to which Big Oil or its allies in the Bush administration influenced the MMS's 2003 decision not to require acoustic switches. That said, the documents certainly don't prove that there was no link between industry lobbying and the agency's decision. Once again, even agency officials admitted to the Wall Street Journal that one factor in the decision was that "drilling companies questioned [the acoustic switch's] cost and effectiveness."

The next step, from a FOIA perspective, will be to request agency documents discussing the acoustic switch issue, any relevant communications between the agency and White House, and between the agency and lobbyists, and finally, it might be worth taking another stab at documents from Vice President Cheney's Energy Task Force. The latter group of documents have been infamously hard to obtain - the NRDC brought a successful FOIA suit culminating in the release of 13,500 pages of documents in 2004, but they were heavily redacted, and numerous documents were withheld.

Gearing back up on the FOIA front

Last year, I filed a Freedom of Information Act lawsuit against the State Department in an effort to get the powerpoint which served as the foundation of Colin Powell's controversial February 5, 2003 speech to UN before the Iraq War. The neocons in the Pentagon's Office of Special Plans created a "Chinese menu" (to use their words) of possible rationales for invading Iraq, and it was presented by Scooter Libby to Colin Powell and other administration officials on January 25, 2003. Powell was to choose a combination of rationales to present to the UN, the way a patron chooses from the dozens of items on a Chinese restaurant's menu.

U.S. District Judge Ellen Segal Huvelle granted the State Department's motion for summary judgment, upholding the agency's claim that it had conducted an adequate search of its records, despite not finding a single document related to the speech. It should be noted that my request was intentionally broad, including not just the PowerPoint itself, but also any emails, notes and other documents referring to the presentation. The McClatchy blog Suits & Sentences had this to say about the lawsuit's outcome:

This seems surprising. One would think memos -- of the CYA variety, if nothing else -- would have papered the building. Or, maybe this was one of those presentations that was, you know, strictly off the books?

While it is shocking that the State Department could not find a single document related to the presentation, it is very difficult to overcome a judge's determination that an agency has conducted an adequate search. Essentially, a plaintiff has to have evidence that the FOIA officer has acted in bad faith, and I certainly did not have that. Is it possible that these documents were intentionally removed before the State Department officials' files were archived? Definitely. But FOIA does not extend to all documents that ever existed, it extends only to responsive documents found through an adequate search.

The decision came down in October 2009, and during the last 2-3 months, I've filed a spate of new FOIA requests. Like the State Department FOIA request, the new ones have an extensive argument backing my request for the media fee waiver (which was extended to bloggers by the Open Government Act of 2007, but is still elusive in practice). The documents sought in the pending requests include the "Chinese Menu" (from the Pentagon, rather than the State Department), and documents related to the BP oil spill in requests from the MMS and Federal Maritime Commission.

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Sunshine Week 2010: a mixed bag

Last week was Sunshine Week, and to mark the occasion, the National Security Archive released a report titled "Sunshine and Shadows: The Clear Obama Message for Freedom of Information Meets Mixed Results." The report, based on an audit the Archive conducted of the federal government, found that only four of 28 responding agencies show FOIA releases up and denials down, compared to 2008.

Probably the most surprising part of the audit related to FOIA requests the Archive filed in September 2009, requesting information about the agencies' responses to the FOIA memoranda Pres. Obama and Atty. Gen. Holder issued in the spring of 2009:

Some agencies (13 out of 90) implemented concrete changes in practice as a result of the memos; some (14 out of 90) have made changes in staff training; and still others (11 out of 90) have merely circulated and discussed the memos. The remaining agencies (52) either told the Archive that they have no records that demonstrate how they implemented the Obama and Holder Memos or did not respond at all to the FOIA request.

While I didn't expect an overnight sea change in FOIA policy with Obama's election, it is hard to believe that such a small percentage of the agencies could provide any evidence that they took steps to comply with the memos, or even received them. If next year's audit does not find substantial improvement, it will be a serious rebuke of Obama's transparency platform.

In other (more promising) Sunshine Week news, Rep. Steve Israel (D-NY) is sponsoring a bill called the Public Online Information Act (POIA), which would set the bar for "public" information at "online in user-friendly formats." The Sunshine Foundation's website has more information about the bill, including a one-minute-long video explaining how it would improve transparency. Excerpt from the Sunshine Foundation's summary:

In the age of the Internet, government is transparent only when public information is available online. The Sunlight Foundation supports the Public Online Information Act (POIA), legislation that embraces a new formula for transparency: public equals online. No longer will antiquated government disclosure practices bury public information in out-of-the-way offices and in outmoded formats.

POIA requires Executive Branch agencies to publish all publicly available information on the Internet in a timely fashion and in user-friendly formats. It also creates an advisory committee to help develop government-wide Internet publication policies. Freeing government information from its paper silos provides the private sector with raw material to develop new products and services and gives the public what they need to participate in government as active and informed citizens. Establishing an advisory committee that brings all three branches of government and the private sector together to develop government-wide information best practices will improve how the government serves the American people.

Pillar on the relevance of "safe havens"

Paul Pillar's op-ed in the Washington Post last week was one of the more interesting pieces I've read about Obama's Afghanistan dilemma. Pillar questions one of the major underlying rationales for maintaining a military presence in the country: if the US leaves, it will return to being a terrorist "safe haven," which will inevitably lead to more 9/11-style attacks.

Pillar isn't attacking the argument that Afghanistan could return to being a safe haven if the US leaves - instead, he's questioning how important physical safe havens are to terrorism, considering that, as he puts it: "The preparations most important to the Sept. 11, 2001, attacks took place not in training camps in Afghanistan but, rather, in apartments in Germany, hotel rooms in Spain and flight schools in the United States." Steve Clemons has a good recap and discussion of the op-ed at The Washington Note.