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NCMNPS internal meetings, deliberations, and decisions

Records of internal meetings, deliberations, and decisions of the National Commission on Military, National, and Public Service (NCMNPS), 2017-2020

All of the records below were withheld by the National Commission on Military, National, and Public Service (NCMNPS) throughout its existence, but were transferred to the National Archives and Records Administration (NARA) when the NCMNPS was disbanded in September 2002, and later released by NARA in response to my Freedom Of Information Act (FOIA) requests.

Some other records — mostly related to public NCMNPS activities and meetings between the NCMNPS and other agencies, organizations, and lobbyists, but not the records of deliberations and decisions linked below — were released by the NCMNPS in response to my FOIA requests before it disbanded. Other NCMNPS records released by NARA include records of NCMNPS meetings with Congressional staff. The NCMNPS categorized all of its records as “temporary” or “permanent”, and designated the records it considered temporary to be immediately destroyed when the NCMNPS was disbanded.

Both the permanent and temporary NCMNPS records were transferred to, and are being held by, NARA. NARA has done an excellent job of processing and releasing the records the NCMNPS designated as “permanent”. But to date, NARA has refused to review or release any of the records the NCMNPS wanted destroyed. NARA admits to holding these records, but claims that, for unexplained reasons, they are in some sort of “FOIA-free” zone. NARA says its only job is to hold these records and make sure that nobody sees them before they are destroyed. In effect, this makes NARA an accessory to the effort by the NCMNPS to stage-manage the historical record of its activities. Some of the most important categories of NCMNPS recrods, including research and polling conducted or commissioned by the NCMNPS, aren’t mentioned on the records schedule that says which records are to be kept permanently and which are to be kept secret until destroyed.

On 21 February 2021, I filed a Federal lawsuit to require NARA to preserve and make public the other records of the NCMNPS that I have requested. (See also my blog post, Why I’m suing the National Archives.)

According to NCMNPS meeting minutes, the Harvard Institute of Politics, where Mark Gearan was hired as Director in 2018 while serving as a member of the NCMNPS, included questions requested by the NCMNPS in some of its polls. And the NCMNPS research staff compiled and analyzed the responses to these and other polls. Both the questions asked and the results of the polling are among the records that have not yet been released, and that I am still seeking.

Why was the NCMNPS so eager to destroy the records of how and on what basis it made its decisions? The NCMNPS was created to give political cover to Congress in deciding whether to end draft registration or try to expand it to young women as well as young men. To that end, the NCMNPS (and Congress) wanted the NCMNPS report and recommendations to be taken as conclusionary and presumed to be well-founded, so that Congress could enact those recommendations into law with little or no hearings or debate that might inflame popular opinion and protest, while pointing to the (presumptively well-founded and exhaustively researched) NCMNPS report as the basis for Congressional action. Yes, that would be a deliberate abdication of Congressional responsibility for a politically controversial decision, but that’s one of the common functions of a “blue ribbon” commission.

For anyone to second-guess the NCMNPS recommendations, inquire into the evidence or arguments supporting them (or not supporting them), or suggest that there were unexamined issues or facts (such as compliance, noncompliance, and enforcement) calling for further Congressional hearings or debate, would defeat the intent of Congress in passing the buck to the NCMNPS in the first place. Constructing a voluminous and comprehensive-seeming, but selective and conclusory, historical record of the activities of the NCMNPS, and expunging anything that might later call the credibility, impartiality, or authoritative character of the NCMNPS recommendations into question, were central to the NCMNPS mission and among the highest priorities for NCMNPS staff.

It was also important for the NCMNPS to bury the records of when it actually decided on its recommendations, since it continued to hold sham “consultations” and pretended to seek “input” from the public and form disfavored categories of stakeholders, such as opponents of the draft, on issues that it has decided (on the basis of invited input and closed-door meetings with selected stakeholders and lobbyists) months earlier, mostly at an unannounced closed-door meeting in July 2019. Records of NCMNPS deliberations and decisions could, and eventually did, expose that charade and the selective solicitation of only certain shades of opinion.

At one of its monthly meetings, in February 2020, the entire NCMNPS took time for a briefing by their Chief FOIA Officer about my FOIA requests and whether I would be able to afford to sue to challenge the NCMNPS claims that its records were privileged and exempt from disclosure.

[The Chief FOIA Officer] began with an update on the Commission’s responses to Freedom of Information Act (FOIA) requests. She explained that while the Commission received few new requests during 2019, it did receive a significant request in early 2020 and is in the process of responding. The new request seeks records relating to meetings of two or more Commissioners, responses to requests for comments, and public statements by Commissioners. Ms. Rikleen explained that staff expects an uptick in FOIA requests as the report is released and the public has questions about how the Commission reached its conclusions…. Staff expects that the uptick will have an impact on operations as staff continue to offboard while requests come in. Ms. Rikleen also… said it is possible that requestors will seek more expansive categories of records, such as communications with outside organizations, and may challenge privilege designations. She noted that burden is not a recognized basis to refuse to release material and that litigation risk depends on the requestor’s resources to pursue claims in court rather than through negotiation….

She explained that even after the Commission releases its report, the decision-making process of the Commission and the materials that went into that process remain protected by the deliberative privilege. For example, the voting materials for last July would be protected and would not be released through a FOIA request. She advised Commissioners to be mindful of not disclosing the specifics of how decisions were made, such as the timing for voting.

Despite expecting that more FOIA requests would be received at the end of the NCMNPS term, as the Chief FOIA Officer reported above, the NCMNPS did nothing to prepare to deal with them, and either summarily denied last-minute requests them or refused to respond to them at all. However, the NCMNPS wasn’t as successful as it had expected at keeping the records of its deliberations secret. At least some of the briefing materials and notes on deliberations at the June 2019 NCMNPS VOTE-O-RAMA, which NCMNPS members were assured could be buried forever, have become public — as linked below.

The NCMNPS kept two sets of minutes. The “real” NCMNPS minutes linked below, which include notes on deliberations and decisions, were illegally withheld in their entirety when I requested them from the NCMNPS. Rather than releasing “redacted” copies with the withheld portions blacked out, as required by FOIA, the NCMNPS created and released a separate set of “public minutes” in which bland cursory summaries were substituted for the redacted portions, hiding how much of the original minutes had been withheld. Presumably, the purpose of this illegal substitution was to make the NCMNPS look more transparent than it really was.

The “real” minutes were transferred from the NCMNPS to NARA when the legal mandate for the NCMNPS as a temporary Federal agency expired in September 2020. NARA eventually released them in response to my FOIA requests. In what amounted to a rebuke of the NCMNPS, NARA released these minutes almost entirely unredacted (only a few personal phone numbers were blacked out), despite the earlier claim of the NCMNPS that they were entirely exempt from disclosure.

None of the NCMNPS working group (subcommittee) meeting minutes were disclosed, nor was even their existence disclosed, by the NCMNPS, even when I requested them. The working group and interagency meeting minutes came to light only in response to my FOIA requests to NARA after the NCMNPS was disbanded.

See more here about the membership of the NCMNPS and more below about what was said behind closed doors in NCNPS meetings.

What went on behind closed doors at NCMNPS meetings?

The files linked above provide a chronological summary, as paraphrased by staff of the National Commission on Military, National, and Public Service (NCMNPS), of the discussions and deliberations of the NCMNPS, except for the “executive sessions” from which all staff were excluded and of which, the NCMNPS claimed in response to my FOIA requests, no notes ast all were kept. Rather than a narrative, the following is an attempt to summarize some key takeaways from my first look at these hundreds of pages of newly-released notes:

The NCMNPS was appointed to give Congress and the President political cover for whatever they decided about women and draft registration. Everything else was a sideshow. But the NCMNPS seems to have gotten carried away with its own rhetoric and cover story about “service”.

The Commisioners were displeased when most of the input they got from other Federal agencies and outside stakeholders focused on women and the draft rather than other issues of “service”, but they made public very few of the other schemes they were coinbsidering.

They wanted more people to come to their events and to submit commnets and statements for the record, but most of them (except for Kilgannon and James) didn’t want to advertise that they were debating whether to draft women, and they threw away or didn’t count most of the comments they received, when they didn’t address the issues or express the opinions most of the NCMNPS wanted to hear.

They complained that witnesses didn’t speak to the options being considered by the NCMNPS. But the witnesses weren’t told which options had already been ruled out by the NCMNPS, or what propoosals (such as the NCMNPS “moonshot” scheme for “unversal” national service) were being considered. Many of the questions tied to these secret proposals seemed cryptic at best to the witnesses, including me, of whom they were asked.

In planning their April 2019 hearings on Selective Service isues, they tried to find witnesses who were opposed to expanding draft registration to women, but supported continuing ot require men to register for a draft. But they found — as should have been no surprise — that most of those who oppose a draft or draft registration oppose it equally for men or womne. Instead of listening to those views, the Commissioners tried to minimize them. After the hearing at which I testified against continuing or expanding draft registration, Commissioner Jeannette James said that, “She thought Mr. Hasbrouck provided a rational argument for his position.” But that position apperas to have bene given no serious consideration by Ms. James or the rest of the Commission.

Discussion and debate within the NCMNPS was neither linear, well-organized, nor (in Democrat/Republican terms) purely partisan. Each member seems to have had their own personal agenda for the NCMNPS, and to have answered to the individual who appointed them (each member was appointed by a specific Congressional leader or by lame-duck President Obama) rather than to a party line. Deliberations wandered, went in circles, rehashed the same debates, and revisited decsions that had been voted on months earlier.

Only one member of the NCMNPS — Ed Allard, ex-Marine (1963-1973), Congressional spouse, and former Director of Operations for the Selective Service System, appointed by then House Minority Leader and close colleague of Allard’s wife Nancy Pelosi — started out with any significant understanding of the Selective Service System (SSS). This gave Allard special influence with his fellow Commsissioners on issues related to the SSS, and he often intervened to bring them back to reality as he saw it.

Allard stressed repeatedly that the SSS achieves what it considers to be high compliance with draft registration only by a combination of (1) avoiding calling attention to the significance of Selective Service registration or the connection between registration and the draft, and (2) a system of primarily “passive” registration that depends overwhelmingly on state laws that make registration with the Selective Service System a requirement, or at least a default, for issuance of drivers’ licenses

Many members of the NCMNPS wanted to make more of a ritual out of registration, as a ceremony of acceptance by young peoeple of an obligation to “serve” the national interest, as that interest is defined for them by the government). But the Commissioners recognized, and returned repeatedly to, the conflict between greater “transparency” about the purpose of registration — to enable a draft — and maintaining a credible level of compliance.

The importance of state laws linking draft registration to drivers’ licenses, as raised by Allard, was confirmed by SSS Director Don Benton in his first, closed-door meeting with the NCMNPS in November 2017:

States that do not require registration to issue drivers’ licenses show significantly lower rates of registration. Those states include California, Pennsylvania, and Massachusetts. In California, for example, 56% of males are registered at the age of 18, going up to about 70% at the age of 19, and increasing thereafter but never approaching the 92% mark that is the country’s average.

Without the linkage of drivers licenses to Selective Service registration, Allard argued repeatedly, compliance with registration would decline rapidly to politically unacceptable levels.

During a closed-door debriefing after the April 2019 NCMNPS hearings at which Dr. Rostker and I testified, Allard also raised a particular problem — not previously acknowledged publicly — that dependence on state laws will pose for any attempt to expand the obligation to register to women:

Dr. Rough [NCMNPS Director of Research] asked the Commission for reactions on whether the secondary registration processes such as using state motor vehicles registration are worth keeping or reviewing. Mr. Allard said he completely disagreed with Mr. Benton about state drivers’ license legislation. He said only a handful of states have laws that are gender neutral and it will be a challenging process to change those laws if registration is required of all Americans [regardless of gender]. Many of those laws, he noted, have been in place for a long time and any changes to them could yield entirely different results.

In other words, hawkish (but also sexist) state legislators who were happy to link drivers licenses for young men to draft registration may not be so willing to amend those laws to make the same linkage for women. Given the dependence of such limited compliance as the SSS now obtains on these state laws, this means that Congress doesn’t actually have the power to expand draft registration to women without state collaboration. If Congress votes to expand registration to women, states will be able to effectively opt out for their residents by refusing to expand their state drivers licrense linkage laws to women, or by repealing them entirely. Congressional action on women and draft registraiton will trigger dozens of divisive state legislative debates that will inevitably go on for years.

NCMNPS members each took individualistic (and sometimes changing and/or seemingly self-contradictory) positions on numerous independently posed questions. Many professed uncertainly, even after they had voted.

Debra Wada — co-chair of the NCMNPS and chair of the “working group” or subcommittee on Selective service issues — wanted not only to retain draft registration and expand it to women but to extend the age of required registration to 44, in order to enable conscription of older people with more special skills.

NCMNPS Chair and Brigadier General Joe Heck was skeptical about whether there was any realistic scenario in which a draft would be needed, and persuaded by the testimony of former SSS Director Bernie Rostker that draft registration should be ended and replaced with contingency planning to assemble a list of potential draftees from other databases only after a draft was called for.

Heck was annoyed that the Department of Defense couldn’t come up with a better justification for wanting to continue registration, and expressed distaste for maintaining a requirement as burdensome as draft registration solely as a lead generator for military recruiting. But he reluctantly went along, defering to the Pentagon.

Heck and some other members of the NCMNPS also seem to have been unimpressed with the SSS and its readiness or actual capacity to carry out a draft if called upon.

Allard wanted to require all registrants for the draft to complete the ASVAB military aptiutude test, to facilitate military recruiting. Heck wasn’t sure about linking the ASVAB to draft registration, but wanted ot find a way to get 100% of high school sophomores to take the ASVAB.

Alan Khazei, like Heck, supported a shift to post-mobilization registration and found Rostker’s testimony “compelling”.

Kahzei’s focus was on an alternative proposal for an integrated military/civilan “universal” service scheme, on which the NCMNPS wasted a great deal of time and effort before voting it down in July 2019. It was never clear how any national service program could be “universal” without being compulsory.

Khazei also pushed for several measures to mitigate the administrative penalties (although not the long-unenforced crimninal penalties) for nonregistration, and for an option for registrants to indicate, at the time of registration, their indicate to apply for classification and assignment to alternative service as conscientious objectors if drafted. (a proposal ultimately rejected by voice vote of the NCMNPS).

Tom Kilgannon and Jeannette James strongly supported draft registration but strongly opposed registering or drafting women. James thought nonregistration by young men so heinous a crime that it should have no statute of limitations at all, but remain prosecutable for life, like murder.

It’s possible that Kilgannon and/or James originally supported a compulsory national service scheme with both military and civilian options, rather than the present military-only contiengency plans for a draft, as a way to ensure that women would have a civilian alternative to military service if they were drafted. They and other Commisioners seem to have bene heavily influenced, however, by the February 2019 testimony by Doug Bandow of the Cato Institute on the un-Americanness of compulsory civilian service.

All of the Commissioners were also influenced by the legal adviuce they recieved that conscription for civilian purposes would probbaly be found unconstitutional.

Shawn Skelly thought it was “unfair” and “deceptive” to register people wihtout their even relaizing what registration was for (e.g. when they apply for a drivers license), then subject them to the risk of being drafted. Her final votes on whether to continue registration or expand it to women remain unclear.

What wasn’t discussed in NCMNPS meetings is at least as important as what was.

Likely compliance or noncompliance by women with an expanded draft registration requirement, enforcement or enforceability of that requirment, and how induction notices would or could be delivered to would-be draftees were never mentioned.

The only mention of enforcement or the Department of Justice was in March 2019, as the Commmission prepared for its April 2019 formal hearings on Selective Service:

Dr. Rough [Director of Research] noted that Ed Hasbrouck will be a panelist and will speak to issues regarding the Department of Justice (DOJ) and enforcement of draft registration requirements. Mr. Lekas [General Counsel] said his team had reached out to the appropriate office within DOJ and was informed that they do not set the policy for enforcing draft registration and has been unable to locate any current guidance from DOJ that does address this issue.

So much for empty threats of prosecution.

This was the full extent of the Commission’s consideration of whether the current or an expanded draft registraitoin requirment could be enforced. There’s no reason for Congress to defer to the NCMNPS on an issue that was never seriously investigated or considered by the NCMNPS. Issues of compliance, noncompliance, and enforcement need to be fully addressed in Congressional hearings, and the Department of Justice needs to be called to testify concenring its enforcement plans and budget (or the lack thereof), before Congress makes a decision about thwther to continue or try to expand draft registration.

Records of the interagency meetings convened by NCMNPS staff with staff with more than two dozen other Federal agencies and departments confirm that, as I had been told verbally by the NCMNPS FOIA Officer, there was no participation by the DOJ or discussion of the role of the DOJ in enforcing (or not, since 1986) the Military Selective Service Act, including enforcing the registration requirement.

In July 2018, the NCMNPS voted 10-0 (one of the 11 members was absent and cast no vote by proxy) to recommend continued contingency planning for a draft. That left open the question of whether to continue registration. But it made a sham of further “consultation” as to whether the U.S. should continue to prepare for a draft.

No record has been found of the conference call several members of the NCMNPS held with anti-war and anti-draft activists in November 2019, which suggests that the call was held to appease anti-war and anti-draft organizations, but without any real intent to consider their views. Despite submissions to the NCMNPS from CODEPINK and other anti-war feminists, the words “feminist” and “feminism” never appear in the records of NCMNPS deliberations.

Most of the formal decisions of the NCMNPS were made during a week-long VOTE-O-RAMA in July 2019, even though the NCMNPS continued to pretend to seek “input” on those decisions through the end of 2019. All of the NCMNPS decsions were made by voice vote except for a roll-call vote on whether to recommend expanding the requirement to register with the Selective Service System to young women as well as young men.

There were 7 Democratic appointments to the NCMNPS (including 4 Congressional appointments and 3 swing appointments by President Obama) and 4 Republican Congressional appointments. To preclude purely party-line decisions, the Commissioners agreed early on to require 8 votes for any final recommendation.

On 16 July 2019, the Commissioners voted 7-4 in favor of recommending expanding draft registration to women. The minutes don’t say who voted which way, but I suspect that it wasn’t a purely party-line vote. According to their own self-imposed rules, this left them unable to make a recommendation on the most important issue they had been appointed to decide.

Two days later, after one of the Commissioners in the minority had been persuaded to change their vote, the NCMNPS reconsidered the question and voted 8-3 to recommend expanding draft registration to women.

Rather than the “consensus” implied by the Commission’s final report, the Commission was only by the narrowest margin, and only after reconsideration, able to reach a recommendation on this issue.

At least one of the Commissioners — most likely Kilgannon — asked whether they would be able to include alternative or dissenting views on this issue in the Commission’s final report. The NCMNPS agreed. In the end, the final NCMNPS report included no minority or dissenting views, although Kilgannon gave interviews after the release of the final report making clear his disagreement with registering or drafting women. I haven’t found any indication of when or why the dissenters decided not to include a minority report.

The NCMNPS spent a lot of time considering how to draft people with skills in special demand by the military, especially for cyber-warfare, including the current Health Care Personnel Delivery System (HCPDS) as a possible model for an expanded special-skills draft. At one point the NCMNPS research staff referred the Commisioners to my Web page about the HCPDS — probably not by choice but because there there is so little information about the HCPDS available from any other source.

Commissioners didn’t seem to think much of the HCPDS. It hasn’t been tested in decades since being developed in response to a Congressional mandate in the 1980s. All of the memoranda of understanding originally negotiated with professional credentialing organizations have expired, the NCMNPS was told. But the Commissioners and those they consulted kept coming back to the HCPDS as the only obvious starting point for discussion of a special-skills draft.

In the end, the NCMNPS decided not to recommend a special-skills draft, mainly because they couldn’t figure out a way to reliably identify those with skills that, unlike the medical skills targeted by the HCPDS, don’t map to professional licensing lists or clearly-defined credentials.

NARA is continuing to process other records of NCMNPS activities. including e-mail records. Some of these records are gradually being released, although NARA estimates that it may take until the end of 2022 before all of those are released. Others have been designated by NARA for destruction, unseen by the public. These are the recrdos at issue in my lawsuit agsint NARA. They are supposedly being reteind pending a decsion in the lawsuit, but that could take months or years.

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This page most recently modified 25 March 2022. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.