Coronavirus pandemic underscores need for legislative fix to the Freedom of Information Act
By Jules Zacher and Theo Wilson
April 5, 2020
Faced with the prospect of millions of COVID-19 infections in the United States and potentially a quarter-million fatalities, the American people deserve to know why the Trump administration was so unprepared to deal with the Coronavirus pandemic despite years of warnings from intelligence officials and from inside Trump’s own White House transition team. Properly answering this question requires obtaining answers from the National Security Council (NSC), a body whose primary purpose is to coordinate whole-of-government responses to national emergencies. But because of appellate court decisions holding that the NSC is off-limits to the Freedom of Information Act (FOIA), the public will be denied the ability to hold the administration accountable until Congress designates the NSC as a body subject to that law.
Former government officials like Joe Biden and Beth Cameron have lambasted the Trump administration for disbanding the White House pandemic preparedness office in 2018 (what was officially called the Global Health Security and Biodefense Directorate, a body within the NSC). Other government officials, notably John Bolton and Tim Morrison, have pushed back against these allegations, claiming the office was not “disbanded,” but merely “folded into” other offices within the NSC. Fact-checking websites like Snopes, PolitiFact, and the Washington Post’s Fact Checker seem to agree significant pandemic expertise and coordination abilities were lost as a result of Bolton’s “streamlining” while national security advisor, but they have struggled to capture the full picture since the agency is shrouded in secrecy. No matter what happened to that office, the reality is the NSC failed to sufficiently prepare for and respond to a foreseeable viral pandemic— and hundreds of thousands of Americans may die as a result.
Questions for the National Security Council
Americans have a rightful access to the life-or-death public health decisions that the government has been making in secret. True to form, President Trump has dismissed questions about the NSC’s preparedness as “nasty” and the potential controversy of breakup the pandemic preparedness office as “fake.” The appropriate term for the office’s demise is not nearly as important as understanding the reasons why the NSC’s actions, or lack thereof, turned a preventable crisis into a full-blown catastrophe the likes of which America has not witnessed since World War II. This information is essential not only for holding the government accountable, but for understanding how the government can prevent this kind of tragedy in the future.
Besides understanding how the NSC prepared and responded to the Coronavirus crisis, below are a few more questions the American public deserves to have answered:
➢ What preparation did the NSC undertake to prepare for an outbreak in light of the October 2019 Crimson Contagion after-action report that specifically raised concerns about a viral respiratory outbreak originating in China?
➢ Did the NSC consider reconstituting the pandemic preparedness office or appointing a senior official in charge of coordinating efforts to “anticipate, prevent, and respond to biological crises” after a bipartisan November 2019 report specifically called on the administration to do so, or were the report’s recommendations totally ignored?
➢ Was the administration’s decision to disband or fold-in the pandemic preparedness office really an attempt to streamline a “bloated” government agency, or was the administration not convinced that a pandemic posed a major national security threat despite numerous intelligence warnings?
➢ What specific efforts did the new counterproliferation and biodefense office undertake to bring this issue to the president’s attention in the early days of the Coronavirus crisis— and how much time and capacity was likely lost as a result of not having the old pandemic preparedness office intact?
➢ Why did the NSC ignore vital resources developed by the former pandemic preparedness office, such as 69-page playbook with color-coded instructions, to guide the government through a pandemic like the Coronavirus?
The Freedom of Information Act and Appellate Court Roadblocks
Access to government information is critical to a well-functioning democracy. It enables citizens to hold elected representatives accountable to fulfill their oath to serve the public interest. That’s why Congress enacted the Freedom of Information Act (FOIA) in 1966, which allows any citizen to request information from the federal government for any reason. Moreover, in the aftermath of the Watergate scandal, Congress even amended FOIA to include the Executive Office of the President, an office that encompasses the NSC.
Unfortunately, appellate courts have nevertheless held the NSC to be strictly off-limits under FOIA— and the Supreme Court has never weighed in. The appellate courts’ justifications stem from a 1980 Supreme Court case, Kissinger v. Reporters Committee for Freedom of the Press, in which the court looked at FOIA and its post-Watergate amendments and decided Congress did not intend the law to extend to “the President’s immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.”
As Andy Wright wrote in Just Security in 2016, this decision has enabled appellate courts to put up roadblocks preventing the NSC from being subject to FOIA. The D.C. Circuit Court put up the first roadblock in 1996 when a former U.S. national security archive director, Scott Armstrong, sued the federal government to prevent the NSC from destroying e-mails before they could be archived in the event of a FOIA request. In that case, Armstrong v. NSC, the D.C. court decided that although the self-contained structure of the NSC resembles that of an agency normally
subject to FOIA, the NSC lacks the authority to do more than advise and assist the president in making or implementing policy. Thus, applying the Supreme Court’s logic in Kissinger, the D.C. Court decided the NSC cannot be subject to FOIA.
The second roadblock came in 2016 when a CUNY law clinic sued the NSC for information pertaining to the killing and attempted killing of U.S. citizens and foreign nationals through drone strikes abroad. In its Main Street v. NSC ruling, the Second Circuit Court of Appeals looked at the actual language in the statute establishing the NSC under 50 U.S.C. § 3021(a), and decided that based on the statue’s wording, the NSC’s only purpose is to advise and assist the president. Thus, applying the Supreme Court’s logic in Kissinger, it is exempt it from FOIA.
These two cases have established a firm appellate court precedent that has barred FOIA requests from reaching the NSC.
Legislating a Way Forward
Between 1980 and 2016, the courts have been interpreting and re-interpreting which government bodies they believe Congress had intended to be subject to FOIA. Meanwhile, Congress has been silent— and the courts have noticed. In its 2016 opinion, for example, the Second Circuit noted that “[i]n the almost twenty years since the D.C. Circuit held the NSC not to be an agency subject to the FOIA, Congress has made no effort to reverse that decision.” Congress needs to put an end to this ambiguity by passing legislation delineating the NSC as an executive agency subject to FOIA.
Representative Jackie Walorski (R-IN-2) twice introduced legislation amending FOIA to specifically include the NSC, in 2016 and 2017, but to no avail. With questions swirling over the administration’s handling of the Coronavirus response, now is the time to try again. Congress needs to recognize how powerless the American people have become to gain access to the life-or-death decisions the government makes in secret. Now is the time to support the rights of Americans to access the vital information necessary to hold the government accountable.
Jules Zacher, Esquire is the founder of Speaking Truth to Power, an executive board member of the Center for Ethics and the Rule of Law at the University of Pennsylvania Carey Law School, and an executive board member of the Council for Livable World. (@JulesZacher)
Theo Wilson is a Master of Public Affairs Candidate at Princeton University’s Woodrow Wilson School of Public and International
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