Monday, December 9, 2013

Is DOJ National Security Division Complying with Federal Records Act?

In the new Shane Harris piece on Foreign Policy "White House v. Holder: The fight over the government's top national security lawyer" about the controversial nomination of John Carlin as the head of the DOJ's National Security Division (NSD), there is a passage (h/t Patrice McDermott) that raises some serious questions about how Carlin, currently acting head of the NSD, is (or is not) complying with the federal records laws:
Two former officials, citing conversations with current Justice Department employees, said that Carlin is avoiding taking documented positions before his Senate confirmation hearing. Instead, Carlin has requested that colleagues not copy him on emails about sensitive policy issues. Many of Carlin's communications are taking place by phone, former officials said. A date for a confirmation hearing hasn't been set. 
Contrary to what frequently appears to be popular "wisdom" within the government, face-to-face meetings and telephone calls do not exempt agency activities from the federal record keeping laws. As the DOJ is unquestionably aware, the federal records laws are not simply about preserving records that have been created; they also impose an affirmative obligation to make records "containing adequate and property documentation" of the "policies, decisions, procedures," etc. of federal agencies that are "designed to furnish the information necessary to protect the legal" rights of the Government "and of persons directly affected by the agency's activities."  44 U.S.C. § 3101.  Whatever might be the practices of Carlin's compatriots who work within the National Security Council, the activities of a senior agency official such as Carlin requires documentation.

As in the case of the missing John Yoo emails, wherein Yoo apparently considered only one email he sent to be a federal record during his entire tenure at the DOJ Office of Legal Counsel (see here footnote 1), or in the case of the June 2005 GTMO court filing in which the DOJ represented that the U.S. government defendants were "well aware of their obligation not to destroy evidence that may be relevant in pending litigation" a few months ahead of the November 2005 destruction of relevant videotapes, the DOJ has unfortunately not provided a lot of confidence that federal record keeping obligations are a high priority.  Moreover, such actions are particularly disturbing within the DOJ who is ultimately tasked with enforcing possible violations.  Cf. Am. Friends Serv. Comm. v. Webster, 720 F.2d 29, 41 (D.C. Cir. 1983) (noting "allegedly illegal destruction" of records that was "attributed to the very agencies in charge of filing suit to protect the records)."

Hopefully as part of his nomination hearings, the Senate will take up this issue and inquire into whether John Carlin has in fact attempted to avoid creating documentation of his activities in violation of the spirit and/or letter of the federal records laws.  The last thing the government needs is another national security official with accountability problems.

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