DHS Showdown with Watchdog Over Travel Ban Report Partially Resolved

After an unusual showdown between the Department of Homeland Security (DHS) and its watchdog, a report on the rollout of President Trump’s first iteration of his so-called travel ban on travelers from seven countries was finally released on the eve of the government shutdown last Friday. The report by the DHS Office of Inspector General (OIG) sheds new light on what went wrong inside the government—but parts of the report are still shrouded in secrecy.

“We're pleased that this watchdog report is finally seeing the light of day, but remain concerned that the Department's redactions may go too far," said Danielle Brian, executive director at the Project On Government Oversight (POGO). "An Inspector General shouldn't have to rely on Congressional pressure and media attention to be able to publicly release its unclassified findings. We'll be closely watching DHS and other agencies for future attempts to muzzle their watchdogs with overreaching secrecy claims."

The report’s issuance was delayed by months because DHS sought to prevent the release of certain parts of the report on the basis that they contained information on DHS’s “deliberative process.”

John Roth, the DHS Inspector General until the end of November, slammed DHS’s review of his office’s report in a scathing November 20, 2017, letter to Congress that stated DHS’s use of the deliberate process privilege “would significantly hamper my office’s ability to keep ‘Congress fully and currently informed about problems and deficiencies.’”

POGO, partnering with OpenTheGovernment.org (OTG), sought to compel the release of the report by filing a Freedom of Information Act (FOIA) request, citing Roth’s description of the report as “final.” The OIG initially declined to provide the report on the basis that the matter was still “ongoing”—a reference to ongoing negotiations with DHS. POGO and OTG had filed a FOIA appeal on January 17, 2018, urging the OIG to promptly review and release the report. Just days later, the OIG finally released the report publicly.

POGO was and still is concerned that agencies can use the deliberative process privilege to muzzle their watchdogs from reporting wrongdoing and fully releasing the evidence that is the basis for their conclusions. This week, Senator Tammy Duckworth (D-IL) requested a review across the federal inspectors general community to examine whether other agencies have also attempted to silence watchdog offices.

“I am particularly troubled by the Department’s threat to invoke the deliberative process privilege, as this is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis,” Roth wrote. “We regularly have published dozens of reports that delve into the Department’s rationale for specific policies and decisions, and comment on the basis and process for which those decisions were made.”

“Indeed, that is at the heart of what Inspectors Generals do,” Roth stated.

The OIG report found that the government’s rollout of the travel ban was haphazard and beset by confusion with little guidance given to DHS employees. Even at the senior-most levels of DHS, there was little heads up that Trump’s ban was coming. The ban caused chaos at airports and at land and sea ports of entry to the United States, with Customs and Border Protection (CBP) employees, travelers, airlines, and others unsure who could enter the United States and who couldn’t. The OIG report provides new unreported details on how DHS’s implementation of Trump’s travel ban executive order played out.

But there are many passages in the report that DHS redacted. Questions have been raised about the integrity of the redaction process and the motivations behind the redactions.

“Secretary [Kirstjen] Nielsen’s decision to personally determine which portions of the report should be redacted raises serious conflict-of-interest concerns,” said Senator Duckworth in a statement. “Given Secretary Nielsen’s central role in the Muslim ban’s implementation, it is inappropriate that she did not recuse herself and instead was able to choose which of her actions or emails to hide from Congressional oversight and the American people.”

While publication of the report is a big step in the right direction, the details behind the black boxes of redactions are still likely of interest to many in Congress, the public, and parties involved in suing the Trump administration over the issue of the travel ban in its various iterations. The legal challenges were also in the news on Friday: at the urging of Trump’s Justice Department, the Supreme Court announced it will likely hear arguments this spring in a travel-ban case originally brought by the state of Hawaii.

The travel ban as well as this report will continue to be a source of controversy. One Senator pledged to seek release of the entire report.

“We requested this independent, non-partisan investigation because the American people deserve to know how and why the Trump administration fell down on the job, violated multiple federal court orders and failed to provide even the most basic guidance or warning regarding the President’s discriminatory and unconstitutional Muslim Ban, causing chaos at airports across the country,” stated Senator Duckworth. “It’s unfortunate that instead of leveling with the public, the Trump Administration spent months trying to cover up its gross mismanagement. The strength and integrity of our democracy depend upon a transparent government accountable to its people. The Trump Administration needs to release the full, un-redacted report.”