DHS OIG Issues a 'Report' with Political Overtones on the 'Travel Ban' Executive Order

By Dan Cadman on November 27, 2017

On November 21, the Department of Homeland Security Office of Inspector General (DHS OIG) published a copy of a letter it had submitted the day before to three members of the Senate, with interim findings attached. The same day it issued a press release to ensure that the letter received media coverage: "DHS OIG Completes Its Review of Implementation of the Travel Ban; Awaits Decision by DHS Regarding Whether It Will Invoke Privilege".

As the title makes clear, the OIG is awaiting a response from DHS on whether or not it will "invoke privilege", and if so, over what portions, of the report submitted for review on implementation of the president's so-called "travel ban" executive order.

"Invoking privilege" is essentially the assertion of the right of presidents and their executive agencies to withhold from public scrutiny the inner counsels that are held prior to making a decision, the "pre-deliberative decisional process". The justification for withholding such counsels or processes is that the president will be deprived of the kind of frank interchange that is needed to inform decision-making if cabinet members and executive branch officers are concerned that their remarks will be aired in the public forum.

It is also clear that the OIG has issued this findings letter as a method of pressuring the department into making its decision, ideally (from the OIG point of view) in favor of full disclosure.

But it is equally clear that the OIG is being used for political purposes, and apparently willing to go along. The initial request to the OIG was made by three Democratic members of the Senate, all of whom made their positions against the executive order known, and all of whom no doubt see political gain in doing whatever can be done, such as using the government to embarrass itself, in order to score points against the Trump administration.

In the letter of interim findings, Inspector General John Roth says this: "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."

That may be, but Roth's tenure has, in the scheme of things, been relatively brief and so isn't any kind of reasonable measure by which to make such a superficially startling claim.

What's more, Roth is surely aware of the kerfuffle that occurred during his longtime acting predecessor's time in office at the Obama administration's DHS, when they decided to withhold their legal justification for reversing a long-held (and erroneous) position that state and local government participation in the Secure Communities fingerprint matching program was voluntary. It took years of Freedom of Information Act litigation in federal court before the underlying documents were aired to public view.

I am myself often skeptical when the government "invokes privilege" since it provides so many opportunities to conceal, deceive, or misdirect — as was exactly the case with the Secure Communities program, which the Obama administration ultimately dismantled when they could no longer control it to the satisfaction of the migrant advocacy groups that held such powerful sway from within (his Domestic Policy Advisor, Cecilia Muñoz, was the former second-in-charge at La Raza).

But, on the other hand, I have been completely dismayed by the string of decisions at both the federal district and appellate court levels that have poked and prodded around the edges of decision-making by the Trump White House in ways that no prior presidential administration has ever been subjected to, including absurd disquisitions by jurists on remarks made by candidate Trump on the campaign trail. Such activism in the courts is intolerable, and belies the notion that of the three branches of government, the judicial branch is the only one that is nonpolitical. It is no wonder that this administration has become hyper-sensitive over the release of internal decision-making discussions.

As to exactly why IG Roth is willing to play along in this political push-me pull-you: that's anyone's guess. Is he hedging his bets that Trump will be a one-term president, that the Democrats will win the next election, and by currying favor he can maintain his incumbency? He was, after all, appointed during the prior administration after scandal befell his longtime acting IG predecessor.