It appears that the Trump administration has been keeping a report conducted by the office of Inspector General John Roth at the Department of Homeland Security inaccessible to both Congress and the American public for several weeks. The report, which reviewed the implementation of Trump’s first travel ban, not only found that the executive order’s rollout was disorganized and ineffective, but also that the department of Customs and Border Protection violated two federal court orders.
In a letter to Sens. Richard Durbin, Tammy Duckworth, Claire McCaskill, and 38 members of the House of Representatives, Roth said the report was delivered to DHS leadership on October 6 and that as of November 20, the leadership had yet to decide whether it would “invoke the attorney-client privilege or deliberative process privilege over portions of the report, which would prevent release of significant portions to the Congress and the public.”
Roth’s main findings stated that the CBP, the department which would primarily take on the charge of enforcing the travel ban, had received no warning about the executive order and was caught off guard after Trump signed it into effect. “Indeed,” Roth wrote, “during the early period of implementation of the order, neither CBP nor the Department was sure of the answers to basic questions as to the scope of the order, such as whether the order applied to Lawful Permanent Residents (LPRs), a significant percentage of the affected travelers and a fundamental question that should have been resolved early in the process.”
The report also found that CBP was “very aggressive in preventing affected travelers from boarding aircraft bound for the United States” and violated two court orders which attempted to deny Boston-bound travelers entry after issuing “no board” instructions to airlines in the countries included in the executive order.
Roth revealed that he was “troubled” by the DHS leadership’s indication that it was deciding whether the report was covered by “deliberative process privilege.” The inspector general noted that while deliberative process privilege is a “common law privilege,” invoking it could “mask discovery of decisions made based on illegitimate considerations, or evidence of outright misconduct.” He went on to argue that, should it be invoked, his ability to keep Congress informed about future reports would also be limited.
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. In fact, we regularly have published dozens of reports that delve into the Department’s rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made. Indeed, that is at the heart of what Inspectors General do…Invoking the deliberative process privilege, in this report and in future reports, would significantly hamper my office’s ability to keep “Congress fully and currently informed about problems and deficiencies” of the Department, as required by the Inspector General Act. I am also unaware of other Inspectors General who have been prevented from issuing reports on such a basis. With regard to this specific report, it would deprive Congress and the public of significant insights into the operation of the Department. Moreover, because we have concluded that CBP appears to have violated at least two separate court orders, we will be unable to describe the factual basis behind our conclusion.
In response to Roth’s letter, Sens. Dick Durbin and Tammy Duckworth released a joint statement slamming the Trump Administration for attempting to “bury” the report. “It’s disappointing that the DHS Inspector General found that CBP violated two separate federal court orders during the chaotic implementation of this ill-conceived Executive Order,” they wrote, “but it is frankly unacceptable that the Trump Administration now appears to be hiding that information not just from Congress, but from the public as well. If the Trump Administration decides to bury an Inspector General report suggesting that’s what happened, there will be repercussions in Congress.”
Should DHS choose to keep under wraps, it’ll be the latest instance demonstrating the lack of transparency so rampant in the current administration.