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FOIA requests to the NCMNPS

My Freedom Of Information Act (FOIA) requests to the NCMNPS

Federal advisory committees are required to deliberate in a fish bowl, but the National Commission on Military, National, and Public Service (NCMNPS) was created as an “independent agency” with its members as minimally-paid part-time Federal employees, rather than as an “advisory committee”. This allowed the Commission to carry out many of its activities behind closed doors. The Commission’s records — which were transferred to the National Archives and Records Administration (NARA) when the Commisison was disbanded — are subject to the Freedom Of Information Act, although with the usual exemptions in that law. I have made FOIA requests first to the Commission itself and more recently to NARA for the Commission’s records of its meetings and events, and have appealed the improperly incomplete responses. At one point, as of the Commission’s FY 2019 Annual FOIA Report, all of the Commision’s docket of overdue pending FOIA requests was from me. Mnay of those requests were never properly processed or responded to before the NCMNPS shut down in Septmvber 2020.

Those meetings the Commission chose to designate as “public” were open, although the extremely short notice given to the public about the locations and times of most of these events made it extremely difficult for interested members of the public from outside these few sites to arrange to attend. Most of the Commission’s meetings were closed to the public and unannounced. The Commission provided as little information as the law allows (or less than that) about its activities, including who it met with behind closed doors, what briefings it requested and received, the research it commissioned, and the basis for its decisions.

The Commission dragged its feet, taking more than two years to respond to some of my FOIA requests. The Commission planned to destroy or delete most of its records before it dissolved on 20 September 2020, transferring only a cherry-picked selection of records to the National Archives. To prevent the destruction of NCMNPS records, I filed a FOIA request for all NCMNPS records. The Commission denied that request, and denied my administrative appeal, but agreed — very reluctantly — agreed to transfer all of its records to the National Archives (NARA) and to have NARA retain them for at least 90 days. That will give me a chance to have NARA take a fresh look, perhaps with less political bias, at which records should be released:

“[T]he Commission’s permanent records will be transferred to the National Archives Records Administration (NARA), and many of the Commission’s temporary records are subject to destruction under its published records schedule at the end of the Commission’s existence. Out of an abundance of caution, NARA intends to retain these temporary records until December 7, 2020 — 90 days from the date of your appeal of our denial of your FOIA request — for the purpose of allowing you to address any further legal rights related to this specific FOIA request.”

NARA has told me it will take at least 20 months to respond to portions of my request for NCMNPS records, and has not yet begiun to act on other portions of my request. But NARA has begun releasing some NCMNPS records, including internal NCMNPS records that weren’t disclosed by the NCMNPS and, for the first time, unredacted notes on closed-door deliberations and decisions, that shed significant light on how the NCMNPS operated, who it consulted, and what options it considered.

The Business Rules approved by the Commission in April 2018 provided that, “Minutes shall be made available to the public on the Commission’s website to the extent such minutes or portions thereof would be releasable under the Freedom of Information Act.” No minutes were posted on the Commission’s Web site until 1 October 2018 — the day after the offical deadline for responses to the Commission’s request for public comments, and the day after the last of a series of complaints I made to Commission staff about their failure to carry out the Commission’s directive. The only minutes posted or released to date are the “public minutes”. The Commission actually keeps two sets of minutes, but illegally omitted any mention of the more complete “internal minutes” from its reponses to my FOIA requests, and illegally withheld them in their entirety (rather than redacting them as required) even after it admitted their existence in response ot one of my FOIA appeals.

More details about what the Commission has been considering have been given in closed-door presentations to military audiences than in its “public minutes”.

The Commission asserted that notes of Commission meetings kept by members or staff of the Commission were not “records” subject to FOIA. Contrary to guidance from the National Archives to the heads of all Federal agencies that, “Content on social media is likely a Federal record,” the Commission initially asserted that none of the text, audio, or video files it has uploaded to official Commission accounts on Facebook, Twitter, or other social media platforms were “records” subject to FOIA.

At one of its first meetings, in November 2017, the Commission received an extensive briefing from the Director and other senior staff of the Selective Service System. The slides from this briefing (first disclosed four months after my FOIA request, and ten months after the meeting), include a summary (see Slide 6) of Selective Service System contingency plans for registering women for a possible military draft:

SSS contingency plans to register women for the draft

Tellingly, the budget estimate for registering women does not include any enforcement costs. There is no record of any consideration by the Commission, or any report or briefing to the Commission, with respect to enforcement or enforceability of either the current registration requirement or any expanded registration, military draft, or compulsory “service” scheme. None of the minutes of NCMNPS meetings incicate any meeting with the Department of Justice (DOJ), which is the department reponsible for enforcement of the Military Selective Service Act. In response to my FOIA request for records of communications between the NCMNPS and the DOJ, the NCMNPS said it found only one record provided by the DOJ to the NCMNPS, a report which noted that the DOJ receives more than a hundred thousand names a year of possible nonregistrants from the Selective Service System, but said nothing about what the DOJ does with these names or about any other enforcement activities or plans.

No Commission records have yet been disclosed regarding contingency plans for a “special skills” draft, beyond the contingency plans in place for many years for the Health Care Personnel Delivery System.

All of the recommendations to the Commission by the Department of Defense with respect to the Selective Service System were redacted from the record of the DOD briefing (see Slide 33) released to me, at the request of the Department of Defense:

redacted slide from DOD briefing

Records of some meetings mentioned in Commission records were withheld without explanation. For example, one of the participants in an invitation-only roundtable at Harvard University on 11 May 2018 “referenced the robust discussion about mandatory national service that he had participated in with the Commission earlier in the week”, according to notes taken by a member of the Commission staff. But that discussion of mandatory national service is not mentioned in the agenda or minutes for the Commission’s activites that week, and no records of that discussion have been disclosed.

In Los Angeles, the Commission met with military liaison officers to the telveision and movie industries about how to get the military portrayed by Hollywood in ways that promote military enlistment. But no records of that meeting have been released yet.

The Commission claimed that pursuant to the Privacy Act, the names of those who submitted public comments to the Commission cannot be disclosed without their permission, and that it would take the Commission’s staff more than a year to redact personally indentifying information before releasing those comments. Hovever, the comment submission page on the Commission’s Web site said that, “Please note that any information you provide on this comment form could be publicly disclosed.” In addition, if the Commission really thought that comments submitted by the public constituted a system of records subject to the Privacy Act, the Commnision would have been required to publish a “System Of Records Notice” (SORN) in the Federal Register, which it never did. Maintaining a system of records containing personal information without first publishing such a SORN would be a Federal crime on the part of the responsible Commission officials. Either Commission staff didn’t really think that public comments constituted a system of records (and only made this claim up after the fact as a pretext to delay disclosing the public comments, which showed overwhelming opposition to conscription), or they were committing what they believed was a criminal violation of the Privacy Act.

Which documents are significant?

Following a FOIA request (initially denied) and a FOIA appeal (successful) by a reporter for USA Today, the Commission belatedly began posting monthly batches of selected extracts from the comments and other submissions from the public — munged, reformatted, unindexed and with most contact information redacted. The Commission has also been posting some documents, including selected submissions from third parties, indexed and labelled and in their original formats, on its Web site, and eventually provided some others in response to my FOIA requests.

The Commission’s final report says that the Commission received “4,300+” comments from the public. But that’s not true. The National Archives, whcih eventually received and has released some of the the Commission’s records, says it has records of 29,181 comments receievd by the Commission — mnay times the 4,300 the Commission acknowledged. But itls event worse: We know that the Commission actually received comments from more than 40,000 members of the public. Almost 90% of those were inexcusably lost, discarded, or ignored by the Commission!

The vast majority of the members of the public who submitted comments to the Commission did so as signatories to one or both of two petitions, one with 25,497 and one with 12,611 signatures, both asking that draft registration be ended entirely rather than extended to women.

In response to my FOIA request for all records of comments submitted to the Commission, I received no record of either of these lists of petitioners. I handed three oversized binders containing almost 1,700 pages of printouts of names of signatories to one of these petitions to the Chair of the Commission, Brig. Genl. Joe Heck, at the conclusion of the Commission’s public event in Los Angeles on 20 September 2018. A Commission staff members walked off with the binders, but the Commission has produced no records of them. For all I know, they were dropped in a dumpster before the Commission staff even got on the plane back to Washington. Or maybe they’ve been gathering dust in some corner of the Commission’s offices. What I do know is that they weren’t counted in the Commission’s report of the reponse to its request for public comments. The Commission eventually produced a copy of the cover page of the petition, with nothing in the version posted by the Commision to idnetify that it was a pettion, and none of the signatures. I resume it was counted as a single comment.

Redacted records of 29,181 comments received by the NCMNPS were passed on to NARA when the NCMNPS disbanded. It looks like the NCMNPS counted the largest of the petitions (with 25,497 signatures) as one comment, and destroyed all recrod of the second-largest one (with 12,611 signatures) before passing on selected records to NARA.

A week before the expiration of the statutory mandate for the existence of the Commission in Septmber 2020, I finally received copies (see links below for some of these) of some of the comments submitted months or years earlier to the e-mail address designated by the Commission for public comments, “info@inspire2serve.gov”. It’s not clear how the e-mail messages disclosed to me were selected, but (1) they were obviously only a subset of those the Commisssion received, and (2) none of those I received in this batch of e-mail messages had shown up in the records of comments posted by the Commisssion on its Web site.

A few days later, just two days before the Commission’s legally-mandated shutdown, the Commission finally provided me, in response to a FOIA request made eight months earlier, with a file of 200 pages of scanned comments submitted by mail (rater than e-mail), including official organizational statements, pettitions with dozens of signatures, etc. Very few, if any, of these comments (possibly only those that might also have been submitted electronically) were included in the comment collections posted on the Commission’s Web site.

Here are just some of the comments that were improperly excluded from the Commission’s tallies and the files posted on the Commission’s Web site:

Why were these comments omitted from the Commission’s tallies and public postings? I don’t know. How many more comments were omitted from those tallies and postings, but never disclosed even in response to my FOIA requests? I don’t know.

Even for those comments that were included in some fashion in the Commission’s tallies, there was a double standard that resulted in a grossly misleading public record of the input that the Commission received: Until November 2019, when a few members of the Commission finally held a conference call with a handful of anti-war organizations and activists, none of the submissions tto the Commission from anti-war organizations or individuals were posted individually or included in the index of Commission documents, unlike submissions from groups and individuals that supported the goals of the military and differ only about tactics for raising an army and fighting wars.

So if you consulted the index of documents submitted to the Commission, you would have seen that the Council on Biblical Manhood and Womanhood submitted a statement that “men are better suited than women for warfare”. But you wouldn’t have known, unless you waded through hundreds of pages of PDFs of unindexed comments, that an interfaith coalition including the National Council of Churches — by far the largest membership organization to express an opinion to the Commission — submitted a statement asking for the abolition of any requirement for women or men to register for the draft, and opposing mandatory military or civilian service.

You would have known what the American Bar Association said about education in civics, but not what the National Lawyers Guild said in opposition to Selective Service.

And you wouldn’t have known about the statement submitted by the anti-war feminist organization CODEPINK: “Women’s equality will not be achieved by including women in a draft system that forces civilians to participate in activities that are against their will and harm others in large numbers, such as war….It is irresponsible for the fight for women’s rights to seek equal moral injury, equal PTSD, equal brain injury, equal suicide rates, equal lost limbs, or equal violent tendencies that military veterans suffer from. When it comes to the military, women’s equality is better served by ending draft registration for everyone.”

Even one of the two submissions to the Commission from members of Congress (in support of conscientious objectors) was relegated to the aggregated “public comments” slush pile. So too were submissions from the War Resisters League, the Center on Conscience and War, World Beyond War, Meetings of Friends (Quakers) in Boulder, CO, and Santa Barbara, CA, and the op-ed and book chapter I submitted as part of my testimony, among others.

From the selection of public comments that the Commission and its staff chose to highlight, you wouldn’t have known that any anti-war voices had been raised to the Commission.

When I pointed this out to the Commission’s Chief FOIA Officer, she told me that any bias or selectivity was unintentional. That’s only partially true. Records released by the National Archives after the Commission was disbanded show that the Commission made elaborate plans to distinguish “invited” and “uninvited” submissions, and debated whether and if so, when to disclose unsolicited organizational, expert, or public submissions. The Commission decided to release the public comments only after I and a USA Today reporter requested them under FOIA, with the manner anbd timing of that legally obligated release determined by how best to “control the narrative” and infleunce how the comments would be interpreted (which are not, of course, lawful reasons for delaying a FOIA response).

The disparate treatment of input to the Commission from different perspectives is indicative of the implicit bias of the Commission and its staff. The debate they recognized as legitimate was over how to staff the military and wage war effectively. It was OK to argue that “we don’t need a draft to accomplish the military mission”, but arguments that we shouldn’t have a draft because it is indeed necessary for certain (undesirable) military missions and because it enables the government to fight wars the people don’t support weren’t part of the acceptable terms of debate.

The Commission later added a new question and answer to its FAQ, attributing the difference in treatment to whether submissions from the public or from other organizations had been “requested” by one of the members of the Commisision or a staff member. The (damning) implication, confirming the bias of the Commission and its staff, is that the Commission and its staff had solicited submissions only from individuals and organizations that support the current U.S. militarism and war-fighting, and argue only within that framework as to how to staff and fight those wars. Unsolicited submissions from outside those terms of reference were accepted, but relegated to the slush pile.

To the Commission and its staff, arguments about how to staff the military were “signal” from those who are recognized as “stakeholders”. Arguments about whether we should be fighting these wars at all were background “noise” from outsiders, and these arguments and those who make them were consigned to the aggregated slush pile of anonymized or semi-anonymized and unindexed public comments.

But that misjudges one of the questions the Commission has asked, and should be trying to answer. As I noted in my testimony:

This Commission’s final question is whether draft registration or a draft are “needed”. The implication seems to be that if a draft might be needed, draft registration should be retained. But that’s getting it backwards. The failure of draft registration should make clear that a draft would not be enforceable or feasible, even as a fallback. If the Selective Service System is an insurance policy, it is one backed by an underwriter that has been insolvent for decades. If U.S. military plans or commitments to endless wars around the world might require a draft, but a draft would not be feasible, that is a reason to scale back U.S. military activities.

Records linked below and on the additional pages for records of the Commission’s events and activities in 2017-2018 and 2019-2020 are either as released by the Commission in response to my FOIA requests, as posted by the Commission on its own or third-party Web sites, or from other government agencies or sources. Most of the files provided to me appear from internal metadata to be newly-created files improperly subsituted for the responsive records originally created and maintained by the Commission. Other discrepancies such as missing files and redactions not supported by exemption claims are noted below. Records acknowledged by the Commission to exist, but withheld as exempted from release in response to a FOIA request, or not yet released pending consultation with other agencies, are listed with the FOIA exemption or consultation claimed by the Commission as the basis for not releasing them.

I have appealed the adequacy of the Commision’s searches for responsive records and all of the withholdings, redactions, and substitutions of files in different and less useful formats. Those appeals, as well as all of the Commission’s records, should be processed by the National Archives and Records Administration (NARA) following the statutorily mandated termination of the Commission’s legal existence on 18 September 2020. I am in discussions with NARA regarding the handling of my FOIA requests, appeals, and potentially responsive records after the transfer of custody of records to NARA.

A few records listed below as “pending FOIA processing” were finally released (in redacted form, although too late for me to appeal the redacitons) in the last two weeks, and some in the last two days, of the Commission’s existence. I’ve posted all the public comments that were released below, but I’m still catching up on posting some of the other records that are more voluminous and less revealing as to either the Commission’s activities or the input it received..

NCMNPS Freedom of Information Act (FOIA) regulations, request, correspondence, and interim partial responses:

Legal background to the NCMNPS:

Reports mandated by the law establishing the NCMNPS:

NCMNPS Web sites and social media accounts:

Requests by the Commission for comments from the public:

Public comments submitted to the NCMNPS:

NCMNPS formal hearings (see this page for links to additional info related to the hearings):

NCMNPS Workgroup Meetings (subcommittees/task forces):

  • Selective Service Workgroup
    • Emails to Commissioners (x25). “For your reference, the emails begin on June 22, 2018, and they end on March 22, 2019.” (pending FOIA processing)
    • Calendars (same as above) (pending FOIA processing)
    • Staff notes (1/3/19, 2/6/19) (withheld - FOIA Exemption 5)
  • Ends, Ways, Means Workgroup
    • Emails to Commissioners (x18). “For your reference, the emails begin on July 201 [sic], 2018 and they end on May, 22, 2019.”
    • Calendars (same as above) (pending FOIA processing)
    • Staff notes (8/15/18, 11/6/18) (withheld - FOIA Exemption 5)
  • Propensity to Service Workgroup
    • Emails to Commissioners (x11) (pending FOIA processing)
    • Calendars (same as above) (pending FOIA processing)

Records of speeches and presentations given by members of the NCMNPS (years not specified in FOIA repsonse):

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This page most recently modified 13 April 2021. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.