Gov't Forcing Wildlife Group to Identify Who Leaked Controversial Draft Rules
March 10, 2009 - 10:44 AM
The investigation was triggered by Sen. James Inhofe of Oklahoma, senior Republican on the Committee on Environment and Public Works. The case suggests that, under at least certain circumstances, the government will continue to pursue and identify federal employees who disclose sensitive documents about controversial U.S. policies -- a common practice under the Bush administration.
The Obama administration last week put the disputed environmental plans on hold, and Obama said previously he opposed the move, which limits scientific reviews of projects that might harm endangered wildlife and plants.
But that hasn't stopped the Commerce Department's inspector general, Todd Zinser, who in a highly unusual move sent an administrative subpoena to the National Wildlife Federation. The subpoena demanded documents that would identify who leaked the draft environmental rules, which were not marked sensitive, secret or otherwise confidential or classified.
Inspectors general operate independently from the White House, although a president can remove them after notifying Congress. Zinser was appointed by President George W. Bush in December 2007.
Zinser didn't notify the White House about the subpoena, Obama spokesman Ben LaBolt said Tuesday.
"President Obama made clear last week that he is working to strengthen the Endangered Species Act," LaBolt said.
The Commerce Department's assistant inspector general for investigations, Scott Berenberg, said the case focused on the government's ability to deliberate policies privately. There have been at least three leaks investigations since January 2006 by the inspector general's office over the release of confidential or proprietary information, including two that were concluded after Zinser took office, according to the agency's case log.
"There's a potential violation of rules governing how this information is supposed to be handled," Berenberg said. "When employees are entrusted with sensitive information, we have to ensure that it is handled accordingly and that they follow the rules."
The head of the National Whistleblowers Center, Washington lawyer Steven M. Kohn, said he feared the investigation will have a chilling effect on any federal employee who discloses information. He said the government will face an uphill legal battle because the environmental group has a strong argument that the probe is an abuse of the right of association under the First Amendment.
Inhofe said in a statement that he asked for the investigation.
"It's simply the right thing to do," he said.
The Associated Press first reported the Bush administration's plans on Aug. 11. Two weeks later, Inhofe told the inspectors general at the Commerce and Interior departments that the unauthorized release of information about the proposals represented "a serious abdication of duty" by someone in the government.
"As we work to provide more accountability and increase transparency in our government, it is imperative we hold those who break the rules responsible," Inhofe said in a statement to the AP.
The Commerce Department is involved in the case because its offices include several dealing with environmental issues under the National Oceanic and Atmospheric Administration. The other federal agency affected by the changes to the Endangered Species Act was the Interior Department, which runs the Fish and Wildlife Service.
Obama's new Interior secretary, Ken Salazar, told the AP he was unaware of the leaks investigation. Salazar said he is a strong proponent of greater openness during the rule-making process as "the best way to deal with the American public." Salazar predicted greater transparency is something the public "will see a lot more of in this administration."
The executive director of wildlife conservation and global warming at the National Wildlife Federation, John Kostyack, said the group will go to court in an effort to get the subpoena quashed. Kostyack acknowledged he was a recipient of the leaked draft rules.
The new Bush regulation enables federal agencies to decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants.
Kostyack described the person who sent the draft rules to him as a whistle-blower. "People within the agency got angry because they lost control of the story," he said, "and now we're being asked to empty our files."
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