(Green Watch, May 2013 – PDF here)
Transparency used to be a treasured goal of the Left. But the current administration, especially where environmental issues are concerned, has worked hard to prevent sunlight from disinfecting its machinations. Recently, the discovery of secret e-mails may have prompted the resignation of EPA Administrator Lisa Jackson.
People on the Left say they love transparency—which they do, except when it inconveniences them, as it does increasingly today.
For a long time, the Left trumpeted transparency as a core value of liberalism. By the early years of the twentieth century, “open government” was a policy demanded by those who called themselves Progressives. Before Woodrow Wilson nominated him to the U.S. Supreme Court, Louis Brandeis coined a famous metaphor for transparency: “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
Similarly, Justice William O. Douglas once quoted from a New York Review of Books article by historian Henry Steele Commager: “The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny, and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.” That quotation has a near-perfect liberal pedigree: an iconic liberal jurist quoting an iconic liberal historian writing in an iconic liberal publication. Yet as with so many progressive agenda items, “transparency” proved to be about other people.
Now that transparency threatens to shine the sunlight on the Left’s own activities, they’ve had enough of it. Today, people on the Left—at least many of those who greatly admire President Obama—see it this way: Institutions that once needed transparency as a disinfectant, as a protection against corruption and abuse of power, are now in the proper hands; so transparency is no longer necessary.
There are exceptions, situational non-hypocrites on the Left like columnist Glenn Greenwald, who noted last year that Obama “has waged the most aggressive and vindictive assault on whistleblowers of any president in American history, as even political magazines generally supportive of him have recognized and condemned. One might think that, as the party’s faithful gather to celebrate the greatness of this leader, this fact would be a minor problem, a source of some tension between Obama and his hardest-core supporters, perhaps even some embarrassment. One would be wrong. Far from shying away from this record of persecuting whistleblowers, the Obama campaign is proudly boasting of it.”
The Obama administration aggressively pursued whistleblowers even as it systematically leaked sensitive information for political gain, such as its release of critical details about the killing of Osama bin Laden. Not all of Obama’s transparency hypocrisies, however, have drawn fire from his allies.
A campaign of concealment
As I detail in my book The Liberal War on Transparency: Confessions of a Freedom of Information ‘Criminal,’ members of the Obama administration employ a broad array of tricks to hide information about their activities on the public’s dime. They conceal and sometimes destroy records, including records of their communications with each other. Email, like other documents created in the course of federal employment, are subject to production under the Freedom of Information Act (FOIA). In addition to FOIA, the Federal Records Act (FRA) requires officials to maintain an adequate record of their activities.
Both laws were designed to ensure taxpayers and historians can discern (in Commager’s term) “what their government is up to.” On its face, stepping outside prescribed channels to correspond about sensitive subjects is an effort to avoid such scrutiny, and to avoid accountability. There are many transgressors in this regard, but perhaps the greatest concentration of abusers is at the Environmental Protection Agency (EPA).
At the EPA, senior appointees have promiscuously and unlawfully used private e-mail accounts for official business as just one of several moves impeding public watchdogs from recreating the steps that led to the regulatory onslaught currently being conducted by the agency.
This practice violates the FRA. It specifically runs afoul of regulations requiring an employee to use the public e-mail account assigned to him or her. If the employee must use another account, the employee must “CC” the work accounts and/or provide the office with hard copies of any private-account messages.
Even when the employee fails to follow the law, as a straight legal matter, the private-account e-mail communications of these officials are available to requesters under FOIA. Practically, it is proving more difficult for the same reason they are not to use such accounts: they are under the sole control of employees who have chosen to step outside of sanctioned modes of communication, with the accounts subject to permanent deletions and shielded from the prying eyes of taxpayers.
One EPA Regional Administrator, James Martin of Region 8, has already resigned following revelations that sprang from a FOIA request and subsequent lawsuit that I filed with my colleagues at the Competitive Enterprise Institute. We sought his private-account correspondence, conducted through a “me.com” account, with a former employer, the left-wing pressure group Environmental Defense.
Like Martin, another regional administrator, Jared Blumenfeld of Region 9, is now under scrutiny by congressional investigators for his use of a private account which one of my FOIA requests recently turned up. The same lawsuit of ours has turned up at least two more instances of improper email account use for official business.
It is clear the problem is widespread.
The biggest case so far involves EPA Administrator Lisa Jackson, who recently resigned. Her email account created in the name of a fictitious employee, [email protected], was used to conduct correspondence on official business with an inner circle of confidantes both in and out of government. Jackson’s use of a false-identity e-mail account was exposed by another of our FOIAs and by subsequent litigation, and our pursuit of information about the account has produced numerous leads about other abuses.
Here’s how this investigation came about, and why it matters.
Obama’s ‘skinning the cat’
When President Obama picked Jackson to run the EPA, the Left was ecstatic. Rolling Stone, the music magazine that covers politics from a far-left perspective, hailed her as “the most progressive” ever to be named to the position.
Given the Obama administration’s ethical lapses and its forays into crony-capitalism and political extremism—given its circumvention of the confirmation process via fake “recess” appointments and “czars” (e.g., Van Jones), its siphoning of taxpayers’ money into now-bankrupt “green” energy scams and into the pockets of well-connected corporations like Jeffrey Immelt’s GE, and its lies about disasters like Benghazi—this administration deserves the highest degree of oversight. The so-called “mainstream” media won’t do its job, which leaves the responsibility for this scrutiny to citizen journalists.
What drew my attention and that of my colleagues to the EPA e-mails that became the basis for the Richard Windsor scandal was a series of events, beginning with a comment the President made in the aftermath of the disastrous-for-him 2010 election.
During a press conference the day after the election—the one where he spoke of taking a “shellacking”—President Obama was asked about his agenda for man-made global warming, his vow to “bankrupt” coal-fired power plants, and his call for “cap and trade” legislation (which even a Democrat-controlled Senate had rejected prior to the GOP takeover of the House, which had passed the bill to great outcry). The reporter asked: Now what? The President indicated he didn’t need the democratic process, but would figure out other means of imposing his agenda. There were other ways, he explained, “of skinning the cat.”
Through EPA, Obama then embarked on a backdoor, regulatory way to impose caps on reliable “fossil” fuel sources under existing laws, without the “trading” of energy use allowances, a less rigid version of the scheme—but still one that couldn’t pass Congress. This suite of regulations became known around Washington and regulated industries as the “train wreck.”
My curiosity was piqued. What were the political appointees at EPA saying about this other way to skin the cat and the obvious legal and scientific vulnerabilities entailed? What did they say to their friends in the “green” groups and to industry cronies pushing this agenda? Soon, good fortune led me to a key document that directed my attention to a particular source for answers to these questions.
Bureaucratic resistance to scrutiny
I had been involved in a lawsuit against NASA that was filed after the first “ClimateGate” leaks of documents in 2009. I sought e-mails discussing that agency’s Goddard Institute for Space Studies operating an activist website. (Timestamps showed that the activist site being run out of government offices was also run on taxpayers’ time.) As part of that lawsuit, I obtained an affidavit from a senior NASA official attesting to a continuing document-destruction operation that appeared to be illegal and, in fact, seemed to violate the criminal code (Concealment, Removal, or Mutilation of Records, 18 U.S.C. § 2071).
Remarkably, NASA’s claim that it destroyed the documents was its defense for not turning over the records—their reason was that they had destroyed the records. This affidavit detailed an elaborate system that involved bringing in a privately owned (albeit taxpayer-purchased) computer for accessing NASA’s server, destroying the government’s copy and holding the sole remaining copy on the outside computer, to which NASA’s employee refused access for inspection.
Then, while researching related issues and digging up background material for my book on transparency, I came upon a Government Accountability Office report citing a certain EPA memorandum to the National Archives Records Administration (NARA). It was a memo of a type the law requires when record-keeping problems are uncovered. Using FOIA, I obtained the memo, dated April 11, 2008, and written by EPA National Records Officer John Ellis to NARA’s Paul Wester. It made reference to a “possible unauthorized destruction of computer files” maintained by the EPA.
The EPA memo to NARA described the history of secondary accounts—accounts created for EPA administrators to use in addition to the addresses provided to the public. It declared, “Few EPA staff members, usually only high-level senior staff, even know that these accounts exist.” It added that the accounts had been set on “auto-delete.”
I was familiar with EPA’s past problems with transparency; so as I read the memo, the first item to leap from its pages was an oblique reference to Carol Browner.
Browner was an aide to Al Gore, then became the Clinton-Gore EPA administrator for eight years before she was named Climate Change czar for President Obama. When any reference to Browner comes up in the context of records management, it raises a huge red flag. Now the memo I was reading waved that red flag with the simple phrase describing when these email accounts for the administrator were created, “In the 1990s….”
Browner and the midnight regs
The phrase introduced the memo’s history of how EPA had created, under Browner, dual e-mail accounts for its administrator. Browner’s email use had become the subject of high-profile litigation seeking discussions about a series of regulations she put forth in the final days of the Clinton-Gore administration. New environmental standards, unsupported by science and reason, were designed cleverly and cynically to make life difficult for the new Bush administration. The new administration would be faced with a choice, to implement the abusive regulations (and be blamed for them by people who were hurt) or to rescind them (and face a firestorm of criticism from the media and environmentalists).
Indeed, as these “midnight regulations” were put in place, environmental extremists were lying in wait with an ad campaign designed to characterize the Bush administration as anti-environment and anti-children if it backed away from the new restrictions, as it surely would given their overreach. One such ad featured an adorable little girl asking her mommy for more arsenic in her drinking water.
Thanks in part to Browner’s maneuver, the Bush administration was paralyzed, unable to impose even modest reforms and limits on EPA’s activist bureaucrats. From the beginning, every Bush policy related to energy or the environment was put in the context (as the media would have it) of the Republicans’ “war” on the environment.
How had Browner orchestrated her efforts with the environmentalists’ campaign? Landmark Legal Foundation, led by attorney and radio host Mark Levin, sought to find out by requesting Browner’s e-mail correspondence with “green” pressure groups relating to the midnight regulations.
EPA stonewalled. Judge Royce Lamberth, a former EPA general counsel, issued a preliminary injunction to preserve all responsive records. At a 2001 hearing, where the Justice Department represented the EPA, it was revealed that immediately after Judge Lamberth issued his order (January 19, 2001, the last full day of the Clinton administration), Browner ordered the hard drive in her computer and that of her assistant to be erased.
As the Associated Press reported at the time, “Despite the Court’s order, the hard drives of several EPA officials were reformatted, email backup tapes were erased and reused, and individuals deleted e-mails received after that date.”
The AP added:
That same day, computer technician contractor Kevin Bailey testified, Browner came to him and asked that her computer be purged.
“She needed her files deleted; she wanted her files deleted,” Bailey testified in the Landmark lawsuit. “‘I would like my files deleted. I want you to delete my files.’ Something like that.’’
Browner acknowledged making the request, but said she wasn’t sure of the exact terms she used.
At the time, she added, she did not know about the judge’s order. Browner said she doesn’t think her request affected the case because she seldom used her computer—except for occasional word processing or travel reservations—and shunned e-mail entirely.
Browner said she asked the technicians “to clean up the computer, and in my particular instance, it meant my son’s computer games. I had no idea what else may have been on that computer since I didn’t use it regularly.”
Browner said she simply wanted the EPA to be courteous during the transition to the new Bush administration and that staff, as part of the routine, removed personal items that had apparently accumulated on their work computers.
The Justice Department insisted that it had simply failed to tell Browner about the order. Yet, under deposition, EPA’s information technology staff claimed they had been startled to hear the word choice used by Browner and her aide—to “reformat” the hard drive, which erases anything on it and makes the erased material unrecoverable.
At that time, “reformat” was not a term that would normally have been familiar to someone claiming a degree of computer illiteracy (she claimed that “she seldom used her computer”). I spoke with someone intimately involved in the EPA “clean up,” who told me that Information Technology staffers claimed they hadn’t heard this sort of tech-speak from Browner. My source surmised that Browner had consulted with, or been briefed by, someone who was a “techie.”
If Browner did not use e-mail, one is hard-pressed to explain the memo’s description of her active assistance in creating a secondary account made necessary so she had one the public was not aware of, even designing the address.
Further, Browner, a lawyer, should have known this was no excuse for destroying the records of her correspondence.
The EPA memo stated, “No Loss – Former Administrator Browner reportedly did not use her secondary e-mail account, therefore there was no loss of e-mail records.” That conflates a claim that she did not use email with a fact that therefore no emails were lost. Yet EPA did not inquire further to back up that assertion. Whatever emails Carol Browner did send or receive had been set for “auto-delete” for 90 days after the last modification, and were gone.
The memo notes that, although each administrator’s files were destroyed, it would be possible to reconstruct the accounts, at least in part, by searching its system for traffic sent to or received from other accounts. Thus, EPA acknowledged they could have recreated Browner’s account, but just didn’t try.
According to the memo, “The secondary e-mail accounts are configured so the account holder’s name appears in the ‘sent by’ field.” As we shall see, that sets former administrator Jackson apart from the rest. Hers was not any “secondary account” used to have a more workable account less-cluttered by input from the masses. Hers was a false identity.
Of FOIA, stonewalls, and subterfuge
The memo prompted me to file three FOIA requests, seeking
(a) records discussing the creation or assignment of such an account to Browner
(b) records discussing the creation or assignment of such an account to then-current administrator Jackson, and
(c) e-mails sent to or from Jackson’s secondary e-mail account(s) using any of four keywords relating to Obama’s war on coal.
EPA stonewalled again, ignoring my requests outright. Along with two colleagues, I filed suit on behalf of the Competitive Enterprise Institute (CEI), on whose behalf I had made the requests. EPA then mailed two responses to my (a) and (b) requests, both dated in August—but postmarked in October.
We contended that EPA had ignored our requests, thus violating the Freedom of Information Act, and part of the proof for our contention was the discrepancy between the dates on the responses themselves and the postmarks on the envelopes. Through its Justice Department lawyers, EPA sought to have our claims dismissed on the grounds that the August dates showed they hadn’t really ignored us. Confronted with the October postmarks, EPA abandoned that claim. (Perhaps they had assumed or hoped that we had thrown the envelopes away.)
EPA’s responses included an implausible “no records” response to our first request, the (a) request about Browner. That “no records” response was implausible because EPA’s own memo—the one that exposed the account in the first place—makes it clear that the records must have been in existence in 2008. It was those records, after all, which made it possible for the memo to be written. On that matter, we remain in court at this writing.
The (b) request, about Lisa Jackson, turned up three e-mails, one of which refers to “the private e-mail account” that we later discovered was Jackson’s false-identity account. It wasn’t, of course, a “private e-mail account.” It was @EPA.gov.
Where are the IMs?
Intriguingly, the three e-mails relating to creation of Jackson’s false-identity account revealed that it was first discussed among EPA employees on “Sametime.” Sametime, it turns out, is an IBM instant messaging (IM) product, one of two IM services EPA provides for its employees. Sametime also permits EPA to interact with other IM systems such that if, say, Sierra Club uses Yahoo IM, the two can use it to communicate as an alternative to e-mail.
Here’s the rub: While many FOIA requesters specify e-mail or electronic mail, when circumstances dictate, most seek “records.” Yet, to my knowledge, EPA has never produced IM transcripts in response to a FOIA request. Further, Rep. Darrell Issa (R-Calif.), chairman of the House Committee on Oversight and Government Reform (OGR), has specifically requested in his investigations that EPA produce “electronic records,” yet OGR investigative staff, past and present, tell me they have never seen IMs.
That means that apparently one of two things is happening. Either EPA is failing to maintain IMs as “records,” which is to say they are unlawfully destroying them, à la the “auto-delete” setting on Browner’s secondary account, or EPA is thumbing its nose at the law, congressional investigators, and the public by refusing to produce them.
We made two follow-up requests for copies of IMs to or from Jackson and two other senior officials (including her prospective successor) discussing three green groups, as well as Jackson’s discussing the war on coal. EPA has stonewalled again, and I have sued for these records on behalf of CEI and another organization, the American Tradition Institute.
False identity or fake employee?
It was my third, (c) request, the one for “war on coal” e-mails, that proved the most newsworthy, because it revealed the existence of the nonexistent Mr. Richard Windsor (a name purportedly derived from the names of Jackson’s home town, East Windsor, New Jersey, and her dog).
From a source within the agency, I heard a rumor Jackson used the Richard Windsor alias for her highest-level correspondence. After double-checking this with someone else who had been at the agency for many years, I went public with it, revealing the Windsor persona and then posting, on the Daily Caller website, screen shots showing the e-mail account was installed on Jackson’s computers, as well as some e-mails to and from that address that I had been able to dig up.
Lisa Jackson had been exposed in what was, at best, a spectacular lapse of judgment. Whatever she might have thought at the time, it was entirely foreseeable that if she used a false identity for sensitive communications, she would frustrate record-keeping and transparency laws. In my view, this exposure made Jackson’s resignation inevitable.
And indeed, last December, days after I struck an agreement with the Justice Department culminating in a court order. The EPA was compelled to begin producing approximately 3,000 e-mails per month beginning the following month. The next week, over the Christmas holiday, Jackson announced her resignation, effective in mid-January. She claimed a desire to spend more time with her family; I’m told by agency sources that she did not get the high-flying job offers she had expected. She has, however, signed up with Organizing for Action (formerly Obama for America), the political advocacy group that grew out of the President’s campaign.
Nonetheless, Jackson’s and EPA’s position only worsened as the agency withheld large numbers of the records, in whole and others in large part, as representing “deliberative process” discussions exempt from FOIA. To the extent that is true in any specific case, it amounts to a concession that Jackson chose this account to conduct activities related to formal rule-making (as the issuing of regulations is called). That is, EPA claims it need not reveal the contents because they are “pre-decisional” discussions that are antecedent to the adoption of a formal agency policy. This does not withstand a moment’s scrutiny.
What we found
The first round of the e-mails covered by the court order was delivered to us in January. In all, as of the first week in April, EPA through its counsel at the Department of Justice has provided three “productions” (sets of e-mails) totaling about 6,000 e-mails. The e-mails are heavily redacted, often in absurd ways, such as when two versions of the same message are redacted differently, which makes it possible for us to reconstruct some of the redacted information. In large part the redactions are of EPA discussion of media coverage and Congress. That is not “deliberative process.”
Despite EPA’s efforts at nondisclosure, the e-mails are revealing. But as they say, sometimes the most important clue is the dog that didn’t bark. In this case, the non-barking dog is in the e-mails the EPA has yet to release, e-mails that are part of the most important class of records covered by our request.
That class includes e-mails sent from Assistant Administrator for Air Gina McCarthy, discussing her biggest assignment, the Obama administration’s “war on coal.” This war was her personal project—her “baby,” some call it.
At this point, the McCarthy war on coal messages remain unreleased or redacted in their entirety. As such these massive withholdings will be the subject of litigation this coming summer.
The reason for withholding the messages seems obvious: After Jackson resigned, President Obama nominated McCarthy as Jackson’s replacement. Despite insisting it has nothing to hide, EPA is giving the opposite impression by apparently protecting her until she is confirmed.
Each produced document is numbered, and the productions show vast gaps of records that are obviously being withheld in full—including the date, time, and the identities of the correspondents, which is unlawful. (EPA owes us a full index of these upon completing its documents production in April.) Some records that have been produced have redactions that cover the entirety of discussions with the redactions sometimes covering dozens of pages.
Among the more cartoonish redactions under this guise of “deliberative process” is an aide’s comments about an e-mail to Jackson from the actress Ashley Judd. The context suggests the aide made a derogatory comment about Judd, a political activist who recently considered a run for the U.S. Senate from Kentucky as a Democrat. Other redactions black out instructions to Jackson regarding questions to expect in interviews, or black out parts of Jackson’s schedule, hiding the identities of people with whom she met.
The redactions are bad enough, but presumably the worst material, especially related to McCarthy, is being withheld in its entirety.
What we don’t know—yet
We now know that McCarthy, Jackson and her inner circle, and a number of lawyers were involved in this obvious violation of the requirement that bureaucrats maintain an accurate record of their activities—a record that should be accessible to historians, journalists, taxpayers, and anyone willing to file a FOIA request.
So far, the e-mails released show that EPA officials coordinated with appointees at the Federal Energy Regulatory Commission to discredit warnings, raised by watchdog groups, that EPA’s agenda puts our electricity supply at risk. We’ve also learned that other senior employees have used private e-mail accounts—the very activity that, when revealed, led to the resignation of EPA Regional Administrator James Martin.
Perhaps the most tantalizing breadcrumb of all is found in a reference to using IM (instant messaging) for sensitive communications. As noted above, the failure of EPA to turn over IMs to Rep. Issa’s investigators or to those filing FOIA requests is an issue that won’t go away. Indications to date are that our lawsuit seeking IMs has EPA quite concerned. We shall soon discover why.
What is EPA continuing to hide? Whether the agency’s secrets have to do with Gina McCarthy’s record, or President Obama’s “global warming” agenda, or other potential scandals, we can be sure that EPA will continue to fight against disclosure well beyond the court-ordered deadlines for giving up the e-mails.
Why Richard Windsor matters
The President promised “the most transparent administration, ever.” The Richard Windsor case exposes the reality, an administration full of secrets—and not just at EPA.
► Congressional investigators have told me that, when cutting deals for industry support of Obamacare, Jim Messina, then the deputy chief of staff at the White House, used an AOL account. (Messina is now head of Organizing for Action, the President’s political action group.)
► It is public record that Department of Energy officials used 14 separate private accounts to execute the loan guarantee program made infamous by Solyndra.
► The White House even arranged for a privately owned computer server to use when discussing the controversial U.N. Intergovernmental Panel on Climate Change, presumably to keep those discussions beyond the reach of FOIA requests. The House Science Committee and CEI both continue to seek access to the documents stored there.
► The Obama administration uses industry lobbyists as “cut-outs” (go-betweens) to avoid direct written contact with groups, certain to be subject to FOIA. For example, the American Wind Energy Association was the Department of Energy’s cut-out with the Center for American Progress and the Union of Concerned Scientists in their joint efforts to discredit Spanish economists whose “green jobs” study showed that for every “green” job created in Spain, more than two other jobs were lost.
► Obama appointees created “handles,” or code names, for discussing high-profile or controversial appointees likely to be the subject of information requests.
► The Obama administration has systematically politicized FOIA, even installing the equivalent of political commissars at agencies to sign off (or not) on the release of public records. Historically, that process has been non-partisan. But a career FOIA officer told me of requests at the Energy Department being routed through the General Counsel’s office for political review; whistleblower Christian Adams reported the same sort of political screening when he worked at the Justice Department; and investigators for Rep. Issa found the same practice at the Department of Homeland Security.
Some ploys in this war on transparency are sophisticated, others comically crude. Many violate the letter of the law, and all of them violate the spirit of laws enacted to “let the public know what their government is up to.” These efforts must be exposed and stopped, and the corruption that politicians and bureaucrats are hiding must be laid bare.
Christopher C. Horner is a senior fellow at the Competitive Enterprise Institute in Washington, D.C.. He is director of litigation for the American Tradition Institute, and author of The Liberal War on Transparency: Confessions of a Freedom of Information ‘Criminal’ (Threshold).