On the White House Scientific Integrity guidelines – Part 3: OMB as a Force for Secrecy

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On December 17, 2010, the White House issued scientific integrity guidelines that, among other things, could be used by federal agencies to require that government scientists have minders when giving interviews -- and now the White House refuses to be transparent about the process that produced these questionable guidelines.  The available evidence indicates that the Office of Management and Budget played a very significant role in developing the guidelines, which were announced by Office of Science and Technology Policy director John Holdren in December 2010.  We know Holdren as a scientist deeply committed to scientific integrity and transparency.  And we know OMB as an agency with a decades-long record of corrupting science with politics and collusion with moneyed interests, and as an enforcer of Executive Branch secrecy.  This third in a four-part series by environmental journalist Joseph A. Davis examines the problem.

The following is the third in a four-part series of posts on the White House Scientific Integrity guidelines memorandum issued December 17, 2010.

Also see:

Part 1: OMB's Secret 'Openness' Policy

Part 2: Can Federal Scientists Speak Freely With Journalists?

Part 4: Sources, Documents, Further Information

Scientific "Openness" Run as Black Opas Black Op

from OMB's Secret White House Lair; Integrity Suffers

By Joseph A. Davis

Part 3: OMB as a Force for Secrecy

WHY THE DELAY IN SO URGENT A MISSION?

The White House's 17-months-past-deadline delay in issuing the Holdren memo has been characterized by some -- especially Obama's GOP political adversaries such as Rep. Paul Broun (R-Georgia), the new chairman of the House Science Subcommittee on Investigation and Oversight -- as an indication that the administration is not serious about science integrity and transparency.

Certain truisms spring quickly to the lips of the administration's friends and foes alike. Transparency begins at home. Actions speak louder than words. Or as Jeff Ruch, Executive Director of Public Employees for Environmental Responsibility (PEER) -- put it in an October 19, 2010 statement: "Why is the development of transparency policy cloaked in secrecy?"

Hence the intense curiosity by political players and media alike about the reasons for the 17-month delay. Official explanations ("the process has been more laborious and time-consuming than expected") have been inadequate and unconvincing, when they were offered at all. Efforts by outside parties to gather information about how the Obama administration's science transparency policy has been formed … have been rebuffed.

A few things are known.

In a June 18, 2010, White House blog post, OSTP Director Holdren stated:

"OSTP began the process by creating an interagency panel with representatives from all of the major science offices and agencies. That group launched an unprecedentedly open, Web-based process to accept detailed input from stakeholders inside and outside government. Based on that input and internal discussions, the group developed draft recommendations for consideration by OSTP and OMB. And over the intervening months representatives from those two offices have been honing a final set of recommendations."

From documentary evidence, however, the interagency panel's deliberations seem less open than Holdren describes them as being. The President's March 2009 memo was indeed published in the Federal Register, as ordered by the memo itself. No trace of the panel's deliberations currently exists on the OSTP website, although some apparently did in 2009. The recommendations of the "unprecedently open" panel are being withheld from the public as a government secret. The official docket of this action (OSTP-2009-0001) contains none of the hundreds of comments received -- even though some have been published by the groups submitting them.

PEER filed a FOIA request on August 11, 2010, for documents that would shed light on the reasons for the delay. OSTP, PEER says, failed to respond within the legal time limit, constructively denying PEER's request. PEER appealed and eventually sued OSTP under the Freedom of Information Act for the information. The case is still pending, but on December 21, 2010, OSTP came up with about 155 pages of records -- almost all of which were completely blacked out by White House censors. PEER released them the next day, but PEER (and the public) still has only a fraction of a fraction of the information it requested.

And as for the "interagency panel" mentioned in Holdren's blog post? Until December 22 we did not know the names or agencies of many of its members. It was referred to in memos as the "Ad Hoc Science Integrity Task Force," or simply “SITF.” The unredacted portions of the FOIA'd documents indicate that the agencies included OMB, Defense Department, Energy Department, National Science Foundation, National Institutes of Health, National Aeronautics and Space Administration, National Oceanic and Atmospheric Administration, Environmental Protection Agency, Agriculture Department, Food and Drug Administration, and about six others unnamed.

From the released emails, it appears that the SITF had come up with its draft recommendations by May 22, 2009, and that its deliberations were largely over by August 11, 2009, when Holdren thanked them for their service. By May 22, when the SITF had drafted a set of recommendations, it was clear that higher-ups in the Executive Office of the President were taking over the process and revising the SITF's recommendations. Further SITF meetings were temporarily suspended. At least 15 people from various EOP offices were involved in changing the SITF's recommendations, but OMB and OSTP seemed to dominate.

Did the White House honchos revise the SITF's recommendations to make them more open or less open? We simply don't know.

Part of the reason for the delay may well have been recalcitrant agencies -- whether they disagreed with the March 2009 policy itself or with OSTP, OMB, or other agencies about how to implement it. Did they balk at the a requirement for a formal policy? Did they balk at the idea of unsupervised or unapproved conversation between scientists and journalists? Were they simply defending their autonomy and turf? We just don't know.

Very likely the Defense Department had science that it considered "classified," and thus an exception to the openness policy. It's quite possible that agencies differed over matters like "confidential business information" -- often called "trade secrets." Some agencies handle a lot more CBI than others. If a pesticide company files a study about their product's effects on human health with EPA, for example, claiming that the information is CBI, can the EPA scientist handling the matter administratively talk to the media about it? Did business lobbies ask OMB for more CBI secrecy? We just don't know.

OSTP's response to PEER's lawsuit did not include the SITF "draft" recommendations PEER had asked for. What we do know is that the agencies' SITF spent barely 7 weeks (April 6 to May 22, 2009) developing its draft recommendations. Then OMB, OSTP, and others in the White House spent the rest of the time (May 22, 2009, to December 17, 2010 -- almost 19 months) "honing" them.

Despite power imbalance, the scientific integrity policy development process seemed to go forward by consensus. A single objection could block a decision. That may have been one reason for the slowness. PEER's Jeff Ruch describes the Obama White House as "more convenor-in-chief than commander-in-chief"; as he puts it: "The Obama administration negotiates its policies with people who oppose them."

OMB PLAYS HEAVY ROLE

One thing we do know is that OMB played a very significant role in developing the guidelines announced December 17, 2010.

The released memos reveal that OSTP and OMB were locked in negotiations over the final recommendations as early as June 24, 2009. OMB seems to have had the power advantage over OSTP. Every time the OSTP redrafted the proposed recommendations, they submitted them to OMB for approval. OMB seems to have objected each time, and to have had de facto approval authority over the guidelines. In fact, the December 17 integrity guidelines were in the form of a "Memorandum for the Heads of Executive Departments and Agencies" -- and under Executive Order 11030 OMB must approve all such memos.

Is this what the White House is hiding? We just don't know.

Part of the discussions, but seemingly ranking above the SITF, were several agencies from the Executive Office of the President. These included OSTP and OMB, obviously, but also the Council on Environmental Quality and others not named. At one meeting, some 18 people from the Executive Office of the President were involved in rewriting the SITF's recommendations. Did they include the Office of Communications, headed by Dan Pfeiffer? The Office of Press Secretary Robert Gibbs?  Special Counsel to President Obama for Ethics and Government Reform (aka "Ethics Czar"), Norman Eisen?  Others? We simply don't know.

The President's March 2009 memo gave sole authority for the science policy to Holdren:

"I assign to the Director of the Office of Science and Technology Policy (Director) the responsibility for ensuring the highest level of integrity in all aspects of the executive branch's involvement with scientific and technological processes.  The Director shall confer, as appropriate, with the heads of executive departments and agencies, including the Office of Management and Budget… ."

That mandate would have seemed to give OMB the status of just another agency -- although the only one mentioned by name. In practice however, OMB, viewed as a kind of lurking Darth-Vader-like force by most federal employees, is considerably more equal than other agencies. It controls agencies because it controls their budgets. It seems very likely that those missing 19 months before December of 2010 were not some mental blackout, but rather a time of impasse between OMB  and OSTP.

For decades, in both Democratic and Republican administrations, OMB has held and used the authority to overrule scientific findings and set agency regulations from the White House, based on secret meetings with industry groups that contribute major money to presidential campaigns. This authority subverts the law that is supposed to govern agency rulemaking, the Administrative Procedure Act (explained here and published here). The APA says all the arguments and evidence going into a rulemaking must be on the record and available to the public. OMB's "authority" to dictate regulations in secret was asserted by this and previous Presidents via executive order (see EO 12291 and EO 12866), and has not been significantly contravened by Congress. OMB also has extensive authority over federal collection and dissemination of information, which gives it a further grip on the publication or suppression of science. OMB has also claimed authority to suppress publication of federal scientific data under the so-called "Data Quality Act." Despite its vast authority to contravene scientists, OMB as an agency has no appreciable scientific expertise or knowledge.

OMB has a record of trying to distort federal science. Bush administration during 2003-2004 mounted an effort to bring all federal science under OMB supervision by way of a "peer review" policy. While the effort clearly had Bush' (and industry's) blessing, the authority to oversee and rule on the quality of federal science was asserted by OMB itself. After two years of outrage from the scientific community, OMB essentially backed down. Claiming that it was acting to curb "junk science" (a label applied by the right wing to science it does not like), OMB eventually failed because it was seen by the scientific community at large as being itself a key agent for the political distortion and suppression of science.

OMB also has a key role as enforcer of executive branch secrecy. This role was not well understood until very recently, when MSNBC published a leaked memo. In the Jan. 3, 2011, memo from OMB Director Jacob J. Lew to the heads of executive departments and agencies, it was clear that OMB was quarterbacking Obama administration efforts to plug leaks of classified information in response to Wikileaks.

"OMB functions as the sphincter of the federal regulatory process because everything must pass through it," PEER's Ruch says.

OSTP's Holdren went from an illustrious career to the White House as a known quantity: a scientist deeply committed to science integrity and transparency. OMB has a decades-long record of corrupting science with politics and moneyed interests -- it is also a known quantity. It seems reasonable to speculate that the long impasse over Obama's science policy may have involved OMB objecting to a stronger OSTP policy of openness. Without the information the White House refuses to disclose, we simply won't know.

One small sign as to who won the apparent arm-wrestling contest between OSTP and OMB over integrity and openness: OMB is explicitly exempt from the integrity and openness guidelines. It states.

"The Director of the Office of Management and Budget (OMB) will be issuing guidance to OMB staff concerning the review of draft executive branch testimony on scientific issues prepared for presentation to Congress. That guidance will provide standards that are to be applied during the review of scientific testimony.  … Nothing in this memorandum shall be construed to impair or otherwise affect …functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals."

In short, the guidelines state that integrity and openness expectations are not to be applied to  OMB -- which is left to govern itself (and perhaps to decide for itself which federal science is politically "true" or fit for public consumption).

From the wording of the December 17 guidelines themselves, it is clear that OMB successfully defended its existing authority to clear all legislative proposals and testimony from the executive branch (which it claims under OMB Circular No. A-19).  Presentation of science findings to Congress is one of the most important ways the public finds out about crucial science.

Nondisclosure may save the White House from embarrassment. But one price of nondisclosure may be the loss of President Obama's credibility.

In 2002-3, when UN inspectors were looking for nuclear weapons in Saddam Hussein's Iraq, that nation's nuclear scientists could not talk to inspectors without a Baath Party "minder" as chaperone. Nor could reporters wander Iraq's streets without a minder.This, the wisest satraps and shrewdest nabobs of U.S. Intelligence concluded, was prima facie evidence that Saddam was hiding something and could not be trusted. On the strength of this conviction, war ensued. Then the Bush administration began requiring "minders" for news media interviews with its own scientists, whose findings were often inconveniently at odds with the administration's pre-formed policy positions.

When scientific facts and ideology differed, under Bush, the facts had to be hidden, discredited, or disposed of. Thus it was that a pioneering climate scientist with a towering research reputation, NASA lab director James Hansen, was forbidden to do press interviews by  24-year old press officer George Deutsch, whose sole qualifications were that he had worked on the 2004 Bush-Cheney campaign and had lied about having a nonexistent B.A. degree. The Bush administration had finally adopted and internalized the methods of Saddam -- minders and permissions -- for combating truths they found politically inconvenient for the public to know about.

The big surprise, however, was that many federal agencies under President Obama continued the "minders" press policy. But an even bigger surprise, perhaps, was that on December 17, the Obama White House issued scientific integrity guidelines that could be used by federal agencies to require – one might say ‘Saddam-style’ – that government scientists have minders when giving interviews -- and now refuses to be transparent about the process that produced these late and inadequate guidelines.

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