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Records of the National Commission on Military, National, and Public Service (NCMNPS)

My Freedom Of Information Act 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 an advisory committee. This allows the Commission to carry our many of its activities behind closed doors. The Commission's records are subject to the Freedom Of Information Act, although with the usual exemptions in that law. I have made FOIA requests for the Commission's records of its meetings and events, and have appealed the improperly incomplete responses. As of the Commission's FY 2019 Annual FOIA Report, all of the Commision's docket of overdue pending FOIA requests were form me.

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

The Commission has dragged its feet, taking almost two years (and still counting) to respond to some of my FOIA requests.

The Business Rules approved by the Commission in April 2018 provide 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 has asserted that notes of Commission meetings kept by members or staff of the Commission are 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 other briefings provided to the Commission are still being withheld in their entirety pending "consultations" with the Department of Defense.

Records of some meetings mentioned in Commission records have been 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 has claimed that pursuant to the Privacy Act, the names of those who submitted public comments to the Commission cannot be dicclosed without their permission, and that it will 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 says 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 hasn't done. 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 likely show 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.

But there's been a double standard that, until almost three years after the creation of the Commission and near the end of its "consultation" process, resulted in a grossly misleading public record of the input that the Commission has received: Until November 2019, when a few members of the Commission finally held a conferecne 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.

You wouldn't have known about the two petitions submitted to the Commission and Congress, one with 25,497 and one with 12,611 signatures, both asking that draft registration be ended entirely rather than extended to women.

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 probably true, but the disparate treatment of input to the Commission from different perspectives is indicative of the implicit and unconscious, but pervasive, 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 meetings 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 (yet) having released them.

How did the Commission operate? What happened at its meetings and events?

The Commission was established 23 December 2016 through provisions in the National Defense Authorization Act (NDAA) for Fiscal Year 2017. The Commission was originally required to report back to the President and Congress with its recommendations within 30 months of its establishment, i.e. by 23 June 2019. Two years later, in August 2018, Congress included a provision in the NDAA for Fiscal Year 2019 that changed the official "establishment date" of the Commission from December 2016 to September 2017. This had the effect of changing the deadline for the Commission's report from June 2019 to March 2020 -- at which time its recommendations can either be ignored, used, or abused to score points in campaigns for the 2020 elections.

The Commissioners are temporary part-time Federal employees of the NCMNPS. They have been meeting monthly since September 2017, typically for a 2-3 day session either at the Pentagon, the Commission's offices nearby in Arlington, VA, or at other locations throughout the country in conjunction with site visits.

The Commission's events have been carefully stage-managed, with nominal opportuntities for public comment but most time devoted to presentations by Commission members and invited panelists. Members of the Commission had an initial media training session in January 2018 from a Vice President of Edelman Public Relations. Two consultants were later hired by the Commission to provide further media training to the members of the Commission at their December 2018 meeting. At their January 2019 closed meeting, the members of the Commission held a "mock hearing" to rehearse for their public hearings.

I attended four of the Commission's publicly advertised meetings in 2018, and have talked to opponents of the draft who attended others. (See my intial initial written response to the Commission's request for public comments, my comments at its events in Denver, Boston, and Nashua, and my report on the meeting in Los Angeles.) All of these events were small and informal, with perhaps 50 people in attendance at each, including Commission staff and invited witnesses and guests, mainly from voluntary "service" organizations. The first hour of each public session was devoted to presentations by Commission members and a panel of invited witnesses. For the second hour, members of the audience were allowed to speak for up to 2 minutes each. So far as I know, everyone who showed up and wanted to testify at one of these events got a chance to speak, except at the public event in Los Angeles where the Chair of the Commission called an end to the event rather than take an additional 10-15 minutes to hear from everyone who had raised their hand to speak.

Details of locations and times were disclosed only at the last minute. The Commission claims that "These meetings allowed folks to assemble from all over the country," but in fact they were held on too short notice for that to be feasible for those who didn't happen to live near one of the meeting locations. The Commission adopted a (secret) research plan for its staff, and solicited numerous closed-door briefings. But it wasn't until late 2019, at the very end of the Commission's deliberations, that any of the Commissioners met with any conscientious objectors or draft resisters.

One focus of the Commission's initial interest appeared to be a compulsory "national service" requirement with both military and civilian components. The Commission solicited and received closed-door briefings on the draft, draft registration, and compulsory "service", but none of these appear to have addressed the issues of compliance, enforcement, or whether a draft or compulsory service would be "feasible".

The fragmentary records I have received from the Commission in response to my FOIA requests show that the Commission has solicited and received written and verbal (closed-door) briefings from invited witnesses and reviewed published articles concerning the draft, draft registration, a special skills draft, and compulsory national "service".

The author of an article entitled, "Why We Still Need the Draft", which was distributed to the members of the Commission, was invited to give a closed-door briefing in which she, "argued for preserving the selective service system in case of mass mobilization, and urged the Commission to consider ways in which the nation might conscript individuals with unique skills, such as financial analysts or software engineers." During another closed-door briefing by a retired military officer who was invited to tell the Commission why he supports reinstating the draft, members of the Commission asked about how to "sell" the idea of military conscription to a reluctant American public. But there's been little or no mention of this aspect of the Commission's private agenda in the publicity for its public events.

None of the academic experts consulted by the Commision has had any expertise in the history of draft resistance, compliance, or enforcement, and nobody raised these issues in the Commission's closed-door roundtable with invited academic "thought leaders".

At the Commission's October 2018 meeting, the Commission held a closed-door "panel on mandatory national service". According to an article published later by one of the invited participants, a Libertarian anti-draft law professor, "The panel consisted of several legal scholars speaking with divergent viewpoints on the issue, which we understood as focusing on mandatory civilian service, not just the military kind..... I was told that the Commission does not currently plan to publicize an audio or transcript of the panel."

Later public statements by members of the Commision, however, including comments by the Chair of the Commission at a symposium on national service at the Brrokings Institution on 10 October 2019, suggest that the Commissioners eventually realized that compulsory nationals service is a complete political non-starter.

Much of the rest of Commission's October 2018 meeting was devoted to "a closed deliberation to discuss the Selective Service System, focusing on whether all Americans should be required to register", i.e. whether the current requirement for young men to register should be extended to young women. According to the redacted minutes released a month later, a law professor with a background as a military judge was invited to facilitate this discussion. The perceived need to invite an outside facilitator to mediate among the Commissioners suggests that the Commission was still strongly divided on this issue, and had not yet decided whether to recommend that draft registration be ended for all, kept unchanged, expanded to women, or replaced with something different.

Just after that meeting, an op-ed was published in The Hill which which appears to be a trial balloon for at least some of the Commissioners who support a compulsory national service program for all young people. It describes a proposal remarkably similar to the compulsory national service legislation proposed (unsuccessfully) by Rep. Pete McCloskey in the late 1970's and early 1980s. (After his release from prison, draft resister David Harris ran for Congress against McCloskey in 1976.)

As part of its next set of meetings, in November 2018, the Commissioners held a closed-door meeting at the Norwegian Embassy in Washington with representatives of several foreign governments to discuss their compulsory service requirements.

In a disgraceful attempt to appropriate the legacy of the Rev. Dr. Martin Luther King, Jr., the Commission held one of its public events in August 2018 at the National Civil Rights Museum at the Lorraince Motel in Memphis, TN, on the site of Dr. King's assassination. Invoking a perverted re-writing of Dr. King's message to support compulsory "national service", the Chair of the Commission, Brigadier General Joe Heck, published an op-ed column on MLK Jr. Day in 2020 asking his readers to, "Think about Dr. King's words." But here's what Dr. King said about the military draft:

My views on the draft are very clear. I'm against it, and I think the sooner our country does away with the draft, the better it will be for everybody. I'm very disturbed about the militaristic posture of our nation, and I think until we have a radical reordering of priorities in our country, we're going more and more to the depths -- and I should say to the doom -- that follows arrogance of power.

The Commission sought input from a variety of individuals and organizations, some of them with little or no apparent expertise to offer about the draft, draft registration, or compulsory service. In December 2018, for example, Tweets from the Commission revealed that members of the Commission had made a special, unannounced trip to Seattle to consult with Starbucks and Microsoft. Immediately after the release of the Commission's interim report in January 2019, members of the Commission held "discussions and listening sessions" with 27 non-governmental organizations -- not including any anti-war organizations.

Among other issues, the Commission is supposed to report on, "the feasibility... of modifying the military selective service process in order to obtain for military, national, and public service individuals with skills (such as medical, dental, and nursing skills, language skills, cyber skills, and science, technology, engineering, and mathematics (STEM) skills) for which the Nation has a critical need, without regard to age or sex." The Commission held one closed-door meeting with STEM students at the Tennessee College of Applied Technology in Memphis. But this was an invitation-only meeting, disclosed only after the fact. The Commission's only meeting with health care workers was a "faith-Based conversation", also disclosed only after the fact, at the Congregational Health Network in Memphis.

Although the law creating the Commission provides that Commission meetings are to be open to the public unless a member of the Commission objects, or classified information is to be discussed, the redacted minutes I have received in response to my FOIA requests reveal that Commission members have unanimously agreed to close almost all of their meetings to the public and the press. Even Commission staff members have been excluded from many of the Commission's meetings.

The Commission released an interim report on Wednesday, 23 January 2019. See this blog post for some of the errors of omission and commission in the interim report and some key points to keep in mind as you read the interim report and/or news stories about it, such as this one in USA Today in which I was quoted.

The goals of the interim report appear to have been to (a) test the public reaction to policy options including those being most actively considered for the Commission's recommendations, and (b) shape public debate by giving a limited menu of options between which to choose, and factors on which to base that choice -- not including the likelihood of resistance or the difficulty of enforcement of compulsory "service", issues on whihc the Commission has yet to conduct research or invite testimony.

At a press conference to announce the release of the Commission's Interim Report (video archive: part 1, part 2) and its plans for formal hearings, Brig. General Heck said, "We are also taking public comment as we go on our hearing tour. We will reserve a portion of that time to collect public comment in person at those hearings." But only a limited amount of time was allocated to uninvited witnesses selected by lot from those who checked in and got tickets before the start of each hearing. Members of the public whose tickets were chosen were allowed two minutes each to speak to the Commission.

The Commission's first formal hearing, on 21 February 2019, covered "universal service". Of course this "universal" service will be only for young people. The casual conflation of "universal" with "compulsory only for young people" reflects the Commission's profound and unexamined ageism. Any such system would have to have a compulsory element, and thus an enforcement mechanism, in order to be universal, and the staff memo on issues and policy options to be discusssed at this hearing includes the following:

Ideas on how mandatory service could be structured have been proposed many times over the past several decades, with primary considerations including ensuring compliance and effective programming. Punishments or sanctions for failing to meet a service requirement could range from ineligibility for government benefits or employment to fines or imprisonment. Whatever means are in place to encourage compliance, a well-structured mandatory service program would require a system to monitor participation.

No witnesses were invited to discuss the issues of compliance, enforcement, or feasibility of compulsory national service.

The only discussion of compliance, enforcement, or feasibility -- i.e. of resistance to conscription as distinct from protest, or legal options for Conscientious Objectors within the system -- occured during two days of formal public hearings on the future of Selective Service in Washington, DC, on 24-25 April 2019.

These two days of hearings (agendas and witness lists) covered both whether draft registration should be ended or continued, and if it is continued, whether it should be extended to women.

On 24 April 2019, Dr. Bernard Rostker, a former director of the Selective Service System, testified that that the database of registrants has become so hopelessly incomplete and inaccurate that it is "less than useless" and couldn't be used for a military draft that could be enforced or would stand up to due process and fairness challenges, and that it can and should be shut down entirely rather than trying to expand it to women.

I testified as part of an invited panel of expert witnesses on 25 April 2019 on "Expanding Selective Service registration to all Americans", i.e. whether draft registration should be ended entirely or extended to young women as well as young men. (Links to my testimony and more information about this hearing.)

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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