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March 2008
Destruction of documents “shocked” Secret Service official
A senior U.S. Secret Service official testified in federal court today that he was “shocked” to find out that an agency inspector had destroyed original documents sought in a long-running civil lawsuit alleging discrimination against African American agents.
R.W. Slama, the special agent in charge of the Philadelphia field office, was called by the government as a witness to explain why he sent an e-mail containing a news story about the document destruction to colleagues.
It is against the service’s rules to send information about previous testimony to potential witnesses. Two of the e-mail recipients had been told that they might be called as witnesses.
Under questioning by Michelle Johnson, an assistant U.S. attorney representing the service, Slama said he did not intend to send the Feb. 21, 2001 e-mail to potential witnesses.
Slama said he did not know that they were going to be called to testify in the case.
The civil lawsuit, originally filed in 2000, alleges that African American agents are routinely leapfrogged by white agents who scored lower on promotional exams. It also says some of the African American agents allege that they endured the use of the word “nigger” on the job and were forced to do less desirable work because they were black and “talked the language of the street.”
Another agent had e-mailed Slama the news story about senior inspector Carrie Hunnicutt’s testimony in the case. Hunnicutt said that she had placed original documents concerning the service’s search for documents in a “burn bag” just two days before she was scheduled to testify in the case.
When he read the story, Slama said he was so upset that a fellow agent could have taken such an action that he forwarded the news story to the others with the words: “Oh Boy!” emblazoned across the top of the e-mail.
Johnson asked Slama why he forwarded the news story.
“I did not want to see an agent in my management conduct themselves like that,” said Slama, referring to Hunnicutt.
Slama said he takes the mission of the service so seriously that he tells his agents that they are held to a higher standard than the public right down to the way they mow their lawn or shop for groceries. “I am extremely proud of the Secret Service,” Slama said. “I was shocked.”
Hunnicutt said she destroyed the documents after she copied them onto a computer file. But later testimony revealed inconsistencies with some of the original documents that escaped destruction and what was inputed into the file.
Today was the 15th hearing held by U.S. Magistrate Judge Deborah A. Robinson to determine whether to sanction the service a fourth time for failing to produce credible testimony and evidence in a timely fashion.
Robinson (pictured) has already sanctioned the service three times. Legal experts say that is a highly unusual number especially against a government agency. The service is appealing all of those sanctions.
Nearly 60 African American agents have filed sworn affidavits backing up the plaintiff’s claims.
Reginald G. Moore, the lead plaintiff in the case, has risen to the senior executive level of the service. In interviews, he has said he is determined to fight the case to the end so that the service permanently changes the way it promotes agents.
E. Desmond Hogan, a lawyer at Hogan & Hartson representing the plaintiffs for free, asked Slama what portion of the news story upset him the most.
“Destroying original evidence,” Slama said. “That is something that never should have been done.”
Slama said that he requires his criminal investigators to preserve all evidence.
“When someone destroys evidence like that, it is wrong,” Slama said.
But under questioning by Johnson, Slama said that he did not have personal knowledge that Hunnicutt destroyed evidence.
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Judge orders White House to show cause in email case
The legal struggle to uncover what happened to millions of missing White House e-mails intensified today.
At issue is a civil lawsuit filed by the National Security Archive at George Washington University and the watchdog group Citizens for Responsibility and Ethics in Washington.
The lawsuit seeks to force the White House and National Archive and Records Administration to take steps to preserve and restore the missing White House e-mails. The missing e-mails cover a period history when the country was at war in Iraq and the administration was under fire for leaking the identity of CIA agent Valerie Plame to the media.
Federal law prohibits the destruction of e-mails and other presidential records.
“The court’s order may bring us closer to protecting the missing e-mails,” said Meredith Fuchs, general counsel at the National Security Archive. “I suppose the White House’s inconsistencies and reversals on the facts are making the court as uneasy as we are.”
Forensic copies of the hard drives would preserve e-mails that may be available on individual work stations, but that are not present on the Executive office’s back-up tapes. Those tapes were recycled prior to October 2003, so e-mails between March 2003 and October 2003 may not be on any of the existing back-up tapes.
Fuchs finds it “perplexing” that the White House would need to be ordered by a federal judge to “take responsible steps to preserve records.”
White House spokeswoman Dana Perino has previousy confirmed the loss of an undetermined number of e-mails. Estimates range as high as 10 million.
The House Government Oversight Committee held a hearing last month to investigate what happened to the e-mails and why White House Office of Administration Chief Information Officer Theresa Payton’s sworn declaration about the e-mails conflicts with other White House statements.
At that hearing, White House officials representatives testified that the White House has depended on “an ad hoc, stop-gap method of archiving emails that was never intended nor suited to be a permanent system,” Fuchs said.
An internal report released at the hearing from the White House office of administration found that “standard operating procedures for e-mail management do not exist.” The report warned that “lost or misplaced e-mail archives may result in an inability to meet statutory requirements.”
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Cornyn-Leahy introduce new FOIA reform
Most people don’t realize this, but there are hundreds of exemptions to the Freedom of Information Act buried in laws passed by Congress.
The legislation is intended to coincide with Sunshine Week, which starts on Sunday. For those in the dark, that is a week devoted to prying open the byzantine ways of Congress and the federal government.
The exemptions to FOIA addressed in the measure are known as (b)(3) statutory exemptions. They are typically tucked away in massive legislative proposals, making it difficult for requestors to determine whether access to information is subject to FOIA.
“This latest bill is an effort to further enhance government transparency and accountability,” Cornyn said. “Sunshine Week is an opportunity to highlight these important principles of our founding fathers; a truly self-governing society depends on an informed citizenry. Chairman Leahy and I will continue working together to ensure the public’s fundamental right to know what their government is doing.”
Similar legislation unanimously passed the Senate during the last Congress but died in the House. The new measure comes just three months after President Bush signed legislation, sponsored by Leahy and Cornyn, that made the first major changes to FOIA in over a decade.
“This Congress has signaled its support for strengthening the Freedom of Information Act,” Leahy said. “While some government information needs to be kept secret, we cannot allow the government to hide behind the veil of secrecy and curb the public’s right to know, just to avoid accountability. Our new legislation will take steps to make clear those exemptions to FOIA, and this is a fitting start to Sunshine Week.”
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Secret Service Official says he didn’t look for documents
The head of the U.S. Secret Service’s Buffalo field office testified in federal court today that he did not search his office files for paper documents sought in a civil lawsuit alleging discrimination against African American agents as he was ordered to do by the service’s legal counsel.
Michael Bryant, the special agent in charge of the office, told U.S. Magistrate Judge Deborah A. Robinson that he signed a document on November 6, 2007 certifying that he had “conducted a thorough search or requested that others conduct a thorough search for documents” requested by the plaintiffs related to the promotion of black agents.
Bryant said he signed a similar certification on January 4, 2008.
But under questioning by Jennifer I. Klar, a lawyer representing the plaintiffs, Bryant admitted that he did not search the office’s files or any of the former offices where he once worked.
Bryant said he trusted the word of his administrative assistant, who has been with the office for 28 years, that the office files did not contain material relevant to the case.
Bryant said he did not ask her to look in any of the office’s files, offices, desks, cabinets, closets or the federal records center. Outside of his personal papers, he did not search for paper documents, he said.
“You searched the mind of your administrative assistant but not the files, correct?” asked Klar, who is part of a team of lawyers from Relman & Dane and Hogan & Hartson representing the plaintiffs for free.
“Correct,” Bryant said.
Moore and nine other plaintiffs claim that black agents were routinely bypassed for promotion by white agents who scored lower on exams. They claim they confronted racial hostility on the job, including the use of the word “nigger.” And that they were forced to do undesirable undercover work because it was assumed that they talked the language of the street.
Their claims are backed by 58 sworn affidavits of other black agents filed in the case.
Robinson has already sanctioned the service three times during the discovery process. Legal experts say that is an unusually high number, especially against a government agency. The American Civil Liberties Union is closely monitoring the case.
The service denies that there has been any discrimination against African American agents. It is appealing all three of those sanctions. The service contends that it has a proven track record of promoting black agents.
The government attempted to use Bryant’s testimony to argue that it has diligently complied with a Dec. 21 order from Robinson to search for paper documents relevant to the case.
Marina Utgoff Braswell, the assistant U.S, attorney leading the defense of the service, said the service has gone out of its way to conduct a thorough search for records in the case. The service has presented several other witnesses that described extensive searches of their office for paper documents.
The documents in question were due to the plaintiffs in July 2006. The service has released more than 300,000 pages of documents over the course of the past two years, but they did not include paper documents from high ranking officials, the so-called decision makers, who decide promotions.
Bryant told the court he did not consult with anyone in his office other than the administrative assistant about the request for documents until this week. The records were originally sought in the summer of 2006.
Bryant said the Buffalo field agents reported back to him that they found “no information related to this case.”
Bryant said he did not search for documents left behind by former heads of the Buffalo field office. “There’s a possibility that they may have destroyed them,” Bryant said. They could have taken the files with them when they left, he said. He said he did not know what happened to the files.
But the plaintiffs lawyer said his testimony underscored their argument that the service did not properly search for records that they requested and Robinson ordered them to produce.
“This shows that the certifications are meaningless. He signed a certification that he had searched all office files when he didn’t search any,” Klar said. “He testified that he had created documents responsive to the plaintiffs discovery request regarding selections for promotion, but now cannot locate and does not know how to locate those documents.”
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Finally, a vote on a media shield law?
Looks like pressure is building from top senators of both parties for a vote on a media shield law.
Just in time for Sunshine Week?
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., urged their party leaders today to call a vote on a bill that would protect a journalist’s confidential sources in most cases.
The House passed a reporter shield bill by a veto-proof 398-21 vote last fall. But the Senate version has been stalled since October because of objections from the administration and Sen. Jon Kyl, R-Ariz.
Click here for Cox Newspapers’ story about Locy’s plight.
Leahy and Specter sent a letter to Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., requesting time for floor debate on the legislation.
“The bipartisan majority support in the House and in the Senate Judiciary Committee demonstrates that federal shield legislation deserves floor time and we urge you to promptly take up the Free Flow of Information Act of 2007,” wrote Leahy and Specter.
The legislation is supported by a wide array of media organizations including the Newspaper Association of America, the Associated Press, the American Society of Newspaper Editors, The New York Times Company, The Washington Post, the New England Press Association, the Vermont Press Association, and the Pennsylvania Newspaper Association.
The main thrust of Kyl’s opposition (which mirrors the administration’s) is concern that the measure would hamper investigations into illegal leaks of classified information as well as efforts to thwart an impending terrorist attack. Another sticking point is whether bloggers should be included in the definition of a reporter.
Attorney General Michael Mukasey recently expressed his “grave concerns” with the House and Senate bills when he testified before the judiciary committees last month.
But meanwhile, Locy is facing financial ruin because Walton may force her to ante up out of her own bank account. Locy is now a professor a West Virginia University.
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Pelosi plans to file lawsuit to enforce WH subpoenas
The House passed a contempt resolution last month against Joshua B. Bolton, White House chief of staff, and Harriet Miers, the former counsel to the president, for failing to respond to subpoenas issued by the House Judiciary Committee in the inquiry.
Pelosi referred the contempt citation to Jeffrey A. Taylor, the U.S. Attorney for the District of Columbia, but there is no sign that he intends to oppose his boss, Attorney General Michael B. Mukasey, by convening a grand jury on the matter. That leaves Pelosi no other option than taking the matter to the courts. “I do intend to authorize House General Counsel Irv Nathan to file a suit in federal court to seek enforcement of the subpoenas,” said Pelosi, speaking to reporters on Capitol Hill today.
In making her decision, Pelosi noted that 17 Republican members of the House Judiciary Committee recorded their dissenting views to the contempt citation that cleared the Judiciary panel last summer.
At the time, the Republican members said an alternative to issuing a contempt citation would be to bring enforcement action in federal court, Pelosi said.
“So there should be no dispute for this action. This is what we are doing,” Pelosi said. “By blocking the enforcement of the subpoenas, the attorney general overstepped his authority in the face of clear statute.”
Let the sun shine on Congress
Lawrence Lessig wants to curb the influence of money in American politics now that he has declined to run for Congress.
The Stanford Law School professor plans to come to Washington on March 20 to deliver a lecture about a way to shine light on corrupt practices in Congress.
Lessing is expected to launch his “Change Congress” project during his speech and describe “his decision to focus his academic interests on the issue of the systemic corruption of American democracy,” according to the Sunlight Foundation which is sponsoring the lecture with the Omidyar Network.
Lessig, a leading intellectual property rights expert, was pressed by colleagues and friends to run for Congress when Rep. Tom Lantos, D-Calif., died. But he decided against it.
The lecture is just one event held by open government groups that week to focus the public’s attention on the growing level of secrecy in the federal government.
The lecture will be at 1:30 p.m. at the National Press Club here in Washington.
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