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Inspectors General Lose Access to Records Critical to their Investigative Freedom

2015-11-30

The Justice Department concluded in a formal finding this past July that the 1978 law that set up Inspector Generals for federal government departments did not really mean  “all records” when it stated that “all records” were to be open to the Inspector’s review.

This finding grew out of a five year dispute with the FBI in which it began to refuse to turn over records such as grand jury transcripts, wiretap intercepts, and emails to the Inspector General in 2010, following scathing reports in which the Inspector found that the FBI was abusing its power in counter-terrorism investigations.  The Inspector General program was begun as a result of the Watergate scandals in which a failed burglary at the Democratic offices in the Watergate Hotel was traced back to the White House and ultimately shown to have resulted from a program directly ordered by then-President Richard Nixon.  Ronald Reagan fired fifteen Inspectors General in 1981.  The program grew to include seventy-two government departments.

Quoting from a New York Times article of November 27:

“This is by far the most aggressive assault on the inspector general concept since the beginning,” said Paul Light, a New York University professor who has studied the system. “It’s the complete evisceration of the concept. You might as well fold them down. They’ve become defanged.”

While President Obama has boasted of running “the most transparent administration in history,” some watchdogs say the clampdown has scaled back scrutiny of government programs.

The article continues with a description of the difficulties in an investigation of how the Corps handled allegations of  sexual abuse of Peace Corps volunteers mandated by Congress that began two years ago.  The Corps refused to turn over abuse reports to the Inspector General of the Peace Corps, citing confidentiality restrictions.  Even after negotiations with the Corps, the Inspector was still only given heavily redacted copies of these reports, critical to an investigation.

Departments under investigation have begun to cite the Justice Department finding, even including records that were not specifically discussed in the finding.  The Commerce Department forced the Inspector General to shut down an internal audit of enforcement of international trade agreements because certain business records were “proprietary” and thus not subject to release.

The Obama administration recently volunteered to restore full access to the Justice Department’s Inspector General but left out all the other Inspectors, who have been left hanging with incomplete investigations of the Environmental Protection Agency as well as many other agencies.  Congressmen and Senators from both parties have complained that the administration is failing to provide sufficient transparency for the Inspectors General to do their jobs.

The most egregious example of obstruction cited by the article was the drug raids conducted by the Honduran military in cooperation with the DEA that started in 2011.  A number of unarmed civilians were killed in questionable circumstances, but the DEA tried to with-hold documents critical to the investigation. The article states that, in 2012, drug agents in a helicopter shot at a boat, killing four people, including a pregnant woman.  The agents also shot down several private planes, claiming they were suspected of carrying drugs.

According to CBS news, the Peruvian air force, using CIA spotters, shot down at least fifteen private planes between 1995 and 2001, in many cases without warning.  In 2001, a plane carrying an American missionary and her seven-month old baby was shot down, killing both.   This past summer, the Peruvian government authorized continued shoot-downs of planes that refused orders to land.  It was said that planes from Peru shuttle more than a ton of cocaine to Bolivia daily.

In a report released to the public in November 2008, an Inspector General’s report concluded that the shoot-downs were in many cases done without warnings, and when warnings were given, they were not allowed time to respond.  In addition, the CIA withheld that information from Congress, the National Security Council, and the Justice Department.  In 2005, internal investigators concluded that no-one should be charged in these incidents.  The program of air interdiction was shut down after the missionary was killed, but has been resumed on unanimous approval from the Peruvian Congress this year.

The Justice Department opinion that “all records” does not mean “all records” is insulting to the concept of open, accountable government, and it appears that Congress may pass laws that close this “loophole”.   This finding is reminiscent of the Justice Department’s memos authorizing torture that were crafted in 2002 by Deputy Assistant Attorney General John Yoo and approved by Assistant Attorney General Jay Bybee.  These memos were repudiated in 2004 by the Office of Legal Counsel’s Jack Goldsmith, who resigned at the same time.   Attorney General John Ashcroft re-authorized torture shortly afterward, and his opinion was confirmed by the new head of the Office of Legal Counsel in December 2004.  All the findings authorizing “enhanced interrogation” procedures such as waterboarding were finally reversed by President Obama when he took office.

It appears that either President Obama is unclear on the concept of “transparent and accountable government” or else his advisers are leading him astray.   I call on him to announce that “all records” means “all records” despite confidentiality agreements and proprietary business information concerns, and to give us really accountable government.  The Inspector General can only work when he has full access to all information about his subjects.  There should be no over-riding concern about secrecy when sworn, vetted members of the Inspector General’s office need to examine records, and their ability to keep confidential information secret should not be questioned.

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4 Comments leave one →
  1. 2015-11-30 08:27

    Interesting article (altho there is a small error) The plural of Inspector General is Inspectors General.

    Like

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