In the days after President Trump issued an executive order in January directing a ban on citizens from seven foreign nations, the Department of Homeland Security (DHS) violated two court orders putting a temporary halt to Trump’s order, according to a letter John Roth, the Department’s top watchdog, sent to Congress. The letter also states that Customs and Border Protection (CBP) leadership “had virtually no warning” that the executive order was coming and could not answer basic questions about it, including whether it applied to lawful residents, “a fundamental question that should have been resolved early in the process,” according to Inspector General Roth.
Roth’s findings are potentially potent since they involve a major law enforcement agency flouting court orders, putting at risk the checks and balances in our system of government. The watchdog’s findings could also provide new ammunition to those with lawsuits against the administration for what Trump has called the “travel ban.”
But the full report detailing Inspector General Roth’s findings is being blocked from release to the public by CBP on the grounds that it contains information on the DHS’s “deliberative process.”
Across multiple administrations, the Project On Government Oversight has long advocated for stronger independence for IG offices and sees their government watchdog role as a critical piece in holding officials and agencies accountable. If DHS is successful in keeping the public and Congress from seeing this report, it will set a dangerous precedent for other agency heads to make future IG reports secret because their findings might be politically sensitive.
Inspector General Roth’s letter was made public last night by Senators Tammy Duckworth and Richard Durbin, both Illinois Democrats.
“The rule of law and our Constitutional protections mean little if law enforcement is empowered by the President to disregard them. If the Trump Administration decides to bury an Inspector General report suggesting that’s what happened, there will be repercussions in Congress,” the Senators said in a press statement.
The letter says that most CBP personnel “complied with the court orders,” even going to “extraordinary lengths to comply” at some airports, but there was “some delay and confusion as to the scope of some of the orders” and some CBP staff learned about them from watching TV.
However, CBP personnel were “very aggressive in preventing affected travelers from boarding aircraft bound for the United States” and, in the view of Roth’s office, violated two court orders. Travelers from seven countries were impacted: Libya, Iraq, Iran, Somalia, Sudan, Syria, and Yemen. Some of those affected were Iraqis who risked their lives as translators for U.S. military forces in that country.
The haphazard, chaotic implementation of Trump’s executive order occurred when now-White House Chief of Staff John Kelly was in charge of DHS. Kelly was confirmed as DHS Secretary by the Senate on the same day Trump was inaugurated—one week before issuance of the executive order.
Agencies have the discretion to restrict public release of predecisional information when the public makes a request under the Freedom of Information Act (and this is often abused by agencies and is informally called the “withhold it because you want to” exemption). However, it’s quite another matter for an agency to restrict what its watchdog publishes.
“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. “In fact, 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 on which those decisions were made.”
“Indeed, that is at the heart of what Inspectors General do,” Roth wrote.
As Roth stated, Inspectors General routinely publish information on the inner working of agencies—indeed, the key question often asked during audits and investigations, as in this case, is whether the decision-making process within an agency followed laws and regulations.
“With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion,” Roth wrote.
In prior matters, DHS has hobbled Roth’s office by excessively redacting his reports.
“The effectiveness of our oversight depends on our ability to issue detailed, balanced and public reports that accurately describe our findings and include recommendations to resolve them,” Roth said in congressional testimony earlier this year. “In 2014, I became concerned that the Department’s procedures for redacting OIG reports during component reviews reflected neither the letter nor the spirit of the Inspector General Act and significantly impeded the OIG’s effectiveness.”
Through his letter to Duckworth and Durbin, Roth may have turned the latest attempt to muzzle his office around on DHS. By attempting to keep this watchdog from barking, they may have handed him a bigger megaphone.