FOIA Shows Weak Enforcement of Endangered Species Act, Biden Issues First National Security Directive, CDC Report on the “Havana Syndrome”, and More: FRINFORMSUM 2/4/2021

FOIA Spotlights Existential Trouble Posed to Florida Panther by Weak Enforcement of the Endangered Species Act 

The Fish and Wildlife Service – a component of the Department of the Interior – is sanctioning development plans in Collier County, Florida that seemingly contradict its most recent guidance (issued in 2008) on preserving the endangered Florida panther. A year-long investigation by The Intercept and Type Investigations, which relied on extensive Freedom of Information Act requests and interviews, shows that the agency – long criticized for its weak enforcement of the Endangered Species Act – is declining “to fully employ the law’s most powerful provisions” to protect the panther’s shrinking habitat. 

In this instance, the agency also appears to be courting conflict of interests with its dealings with the powerful Collier family companies advocating for the development of the panther’s habitat. The Intercept’s Jimmy Tobias writes, “Hundreds of public records and dozens of interviews show that as they work to get federal approval for a plan that would pave the way for their developments, the Collier County landowners have hired a phalanx of Washington lawyers and enjoyed access to top appointees at FWS as well as its parent agency, the U.S. Department of the Interior. The records and interviews paint a picture of a politicized FWS that is struggling to uphold the Endangered Species Act amid a growing global extinction crisis.” Tobias reports that in at least one instance, FWS “accepted money for staffing costs from a private entity — one called Eastern Collier Property Owners, or ECPO, and composed of companies owned by the Collier family and other local landowners — whose permit application the agency is currently evaluating.” 

Read the full investigation here.  

President Biden Issues First National Security Directive 

President Biden’s first National Security Directive designates COVID-19 as a top national security priority, tasking the Secretary of the Department of Health and Human Services and other relevant agency leaders with reporting to the president “recommendations on how the United States can:  (1) exercise leadership at the WHO and work with partners to lead and reinvigorate the international COVID-19 response; (2) participate in international efforts to advance global health, health security, and the prevention of future biological catastrophes; and (3) otherwise strengthen and reform the WHO.”

Presidential directives – sometimes classified and sometimes not – are not published in the Federal Register, and are not consistently publicly posted by successive White House administrations or regularly provided to Congress. 

Steve Aftergood notes that national security directives have had different names under different presidents; Obama’s national security orders were called Presidential Policy Directives, while Reagan’s were National Security Decision Directives. President George H.W. Bush also called his orders National Security Directives, which may prompt some confusion down the road.

Most interestingly, Aftergood reports that President Trump’s last such directive – concerning US government-funded research  – was his 33rd National Security Presidential Memorandum, meaning “that around one third of the national security directives (NSPMs) issued by President Trump have not been been publicly identified to date, either because they are classified or because they have otherwise been withheld from public release.”

75,000 Franchises Cash in on PPP Loans

2,217 McDonald’s franchises cashed in on the Paycheck Protection Program – and they were not the only franchises to do so. A Freedom of Information Act lawsuit filed by the Washington Post and four other news organizations has won the release of data from the Small Business Administration showing that 4,278 Subways and 2,445 Dunkin’s – and nearly 70,000 other franchises – joined the thousands of McDonald’s in taking advantage of the government’s emergency coronavirus small business loan. These franchises collected more than $15 billion of the program’s total $522 billion. 

The Post notes that “Because franchise owners operate somewhat independently of the chains with which they contract, they are eligible to receive PPP funds, money normally reserved for businesses employing fewer than 500 people. The SBA data on franchise affiliations, which the agency had not previously released, shows loans to franchises saved almost 2.5 million jobs, although experts say the SBA’s estimates of PPP job retention are badly inflated.”

Prior reporting on the FOIA release shows that more than half of the SBA’s funds went to five percent of the recipients, and that more than $850,000 of the COVID emergency loan program went to “Five prominent anti-vaccine organizations that have been known to spread misleading information” about COVID. 

CDC Report on the ‘Havana Syndrome’: Medical Mystery Remains Unresolved

The Centers for Disease Control and Prevention (CDC) conducted a two-year “epidemiologic investigation” of the mysterious medical incidents suffered by U.S. personnel in Cuba but could not determine the nature of the injuries nor the cause, according to an 18-page CDC report recently posted by the National Security Archive.  “The evaluations conducted thus far have not identified a mechanism of injury, process of exposure, effective treatment, or mitigating factor for the unexplained cluster of symptoms experienced by those stationed in Havana, Cuba,” concluded the CDC study.

Titled “Cuba Unexplained Events Investigation—Final Report,” the CDC study was completed more than a year ago. But its existence was revealed only after a more recent evaluation by the National Academy of Sciences which referenced the CDC report leaked to the press in December. The National Security Archive obtained the redacted CDC study through the Freedom of Information Act in January 2021. 

The National Security Archive posted the report and a detailed summary of its findings, and urged the Biden administration to lift the veil of secrecy surrounding the Havana Syndrome that has impeded recent investigations into the causation of this still unexplained phenomenon. The posting cites an unreported letter from six U.S. Senators to the Department of State expressing concern that “thus far, the Department has not been forthcoming with key details about the incidents involving the serious injuries incurred by several of those personnel” and demanding more transparency on the Havana Syndrome.

In Brief

• The Department of Homeland Security’s National Terrorism Advisory System has issued a bulletin about the growing threat of “ideologically-motivated violent extremists” and domestic violent extremists (DVEs). The bulletin, which will stay in place until the end of April, appears to be the first DHS bulletin to warn of a domestic threat. The bulletin continues to use the DVE moniker, which rejects harsher and more specific language like “white supremacists”. The DHS’s first Homeland Threat Assessment, issued in October 2020, states that white supremacists are America’s biggest threat – but the final iteration replaced the term “white supremacists” with “domestic violent extremists” in several instances, lumping the specific threats posed by white supremacists in a larger bucket.

• In a prime example of over-classification, over-eager State Department FOIA officers redacted former Secretary of State Mike Pompeo’s favorite pizza topping – citing an exemption intended to protect “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” NBC’s News reporter Josh Lederman tweeted the spurious redactions, showing that the FOIA office invoked Exemption 6 to avoid disclosing what kind of thin crust pizza he ate during a trip to Vatican City. 

• The National Security Archive recently submitted comments to the Federal Register concerning NARA’s plan for digitizing public records. Our comments centered on: the inherent value of original paper records for a myriad of reasons, including but not limited to legal and evidentiary purposes; serious concerns about NARA’s ability to effectively oversee agency implementation of the guidance; the lack of funding for such a mandate; and the lack of guidance on the security of the actual tools for digitization, transmission, or storage. The comments can be found here. (The American Historical Association has also submitted excellent comments, which can be found on their website.)

• Will there be a Trump Presidential Library? Should there be one? Author and former House Oversight Committee professional staffer Anthony Clark has an excellent article in Politico Magazine on the process of establishing a presidential library, and the time and dedicated effort it takes to get one off the ground (noting that Trump’s sustained attention to the issue is unlikely). And the Washington Post’s Philip Kennicott has a powerful read on why Trump should be denied a presidential library on principle: “The extent to which he and his administration destroyed records and communicated outside of federal systems is unknown, which is why he and his people should be cut out of the process of preserving those documents.” (Relatedly, the Promoting Accountability and Security in Transition (PAST) Act, introduced by Senator Chris Murphy (D-Conn.) and Congressman Mike Quigley (IL-05) “establishes consequences for former Presidents that destroy Presidential records, including restricting post-presidency salary and staff, prohibiting public funding for Presidential Library construction, and preventing presidential records from being entrusted to a Presidential Library or Museum regardless of whether public funds were used for construction.”)