Troubling Decisions at NARA: Destruction of Vital ICE Records

The National Archives and Records Administration is, as it self-describes, “the nation’s record keeper.” NARA has the weighty responsibility of ensuring a full and accurate historical record that documents the activities of our federal government.  As CAA has said in an earlier post, in a democracy, the right of the people to know what their government has done and is doing is paramount if we are to ensure electoral, legal, and historical accountability. This responsibility becomes especially important when the lives and health of human beings, and the role of government in destroying those things, are involved. There is no more important duty of a national “record keeper” than to preserve permanently the record of inhumane or illegal actions that a government takes against people. None.

Recently, NARA’s willingness or ability to carry out its duty has again been called into question. On February 4th, Dr. Matthew Connelly of Columbia University published an op-ed in The New York Times entitled “Why You May Never Learn the Truth About ICE”. The editorial pointed out a number of instances in which the Trump Administration is destroying records, including important documents from both the Department of the Interior and the Bureau of Immigration and Customs Enforcement (ICE). Connelly pointed out a number of flaws with the entire federal recordkeeping system (including ongoing budget cuts by Congress for NARA operations as well as NARA staff being cut out of agency recordkeeping discussions altogether). One of his most troubling points, though, was that “[i]n 2017, a normally routine document released by the archives, a records retention schedule, revealed that archivists had agreed that officials from Immigration and Customs Enforcement could delete or destroy documents detailing the sexual abuse and death of undocumented immigrants. Tens of thousands of people posted critical comments, and dozens of senators and representatives objected. The National Archives made some changes to the plan, but last month it announced that ICE could go ahead and start destroying records from Mr. Trump’s first year, including detainees’ complaints about civil rights violations and shoddy medical care.”

On February 7th, the Archivist of the United States, David Ferriero, responded in a Times op-ed, commenting that “[t]he disposition schedule for Immigration and Customs Enforcement’s detainee records was approved after NARA took into account more than 23,000 public comments over more than two years. The result of this extensive review process is that ICE’s detainee death review files are now designated as having permanent historical value, and ICE must retain records involving allegations of sexual assault and abuse for 25 years.”  Connelly shot back in a Twitter thread the next day, using screenshots of the approved schedules, that, in fact, “Medical and civil rights complaint records are designated as “temporary,” to be destroyed three years after DHS closes a case.” He also noted his surprise that, to quote Connelly, “Ferriero seems to think it was a big concession to agree to hold on to records of sexual assault for five more years — and then destroy them forever.” We agree that this is hardly a grand moral, ethical, or professional stance for NARA to take. Despite the fact that a February 14th NARA press release states that Connelly’s claims are “a gross mischaracterization of the facts” , the approved records schedules prove otherwise and, in fact, do deem certain groups of detainee records and civil rights records temporary and eligible for destruction after a 3-year period.

The December 12, 2019 Consolidated Reply by NARA to the public comments on the ICE records schedule makes the…um…interesting contention that “[w]hen the National Archives appraises a series of record as temporary rather than permanent, it does not mean that the activities the records document are unimportant, or that the records lack any research value. Rather, it means that the anticipated research use will be more contemporary rather than many years into the future.” Like Connolly, we wonder why NARA seems to believe that future historians would have little interest in researching our current treatment of undocumented immigrants. To put it bluntly, that’s certainly an opinion.

Ferriero claims in the NARA press release that “[t]hese decisions were based on long-established records appraisal policies and procedures, consistent with the Federal Records Act”. However, Connolly points out (using, humorously enough, Records Management for Dummies as his source) that NARA is actually basing its decisions on a 2004 “Big Buckets” approach to recordkeeping, not 70 years of traditional recordkeeping practices. This approach has problems. For example, in the February 14th press release, Ferriero contends that, in response to Connelly’s claims that the records of the under secretary of State for Economic Growth, Energy and Environment are almost entirely designated as temporary, “[t]his is not accurate. The claim was based on a draft schedule proposed by the Department, which has not yet been appraised by NARA and does not account for multiple records series covering senior officials’ records as permanent. Further, the overwhelming majority of correspondence of State Department under secretaries is captured in email, which are also permanent records.” Connelly responds by noting that in the actual schedule for the records of this particular under secretary contains 17 categories of records, only one of which is designated as permanent. He also points out that relying on email as the primary permanent record results in a less-than-complete historical record, since “government officials often commit little of interest to email”, citing the mostly banal nature of former Secretary of State Hillary Rodham Clinton’s email account as an example.

Interested readers are encouraged to follow the entirety of Connelly’s Twitter thread for the whole story, which concludes by asking an important question: “Does America’s Archivist have the right and the responsibility to tell Trump to stop destroying the historical record?” (His informal poll resulted in 97% responding “Yes”.) We at CAA agree wholeheartedly with this. Between these responses by Ferriero to Connelly and NARA’s recent editing of a Women’s March photograph to cut out Donald Trump’s name, we are increasingly worried that NARA is failing in its duty to preserve the most important records of our government and to ensure an accurate documentary record.

Jeremy Brett
on behalf of the CAA Organizers

Presidential Tweets

The recent Republican primary election in Alabama produced a lot of drama and ideological clashing, as well as talk about the future of the Republican Party. One of the most striking elements of the campaign was Donald Trump’s endorsement of sitting Senator Luther Strange, who lost the nomination to archconservative and radical Christian Roy Moore. Trump had endorsed Strange via both in-person visits to Alabama as well as his characteristic and increasingly tiresome tweeting, and Strange’s defeat was seen by many as a sign of Trump’s weak political influence. After Strange’s loss to Moore on September 26, 2017, a number of Trump’s most recent tweets touting his support for Strange were deleted from his verified Twitter account.  Although many of those tweets were archived by and remain accessible by ProPublica, the fact that Trump deleted them in the first place is yet another link in the chain of troubling behavior by Trump on the subject of public information and on ensuring the integrity of his record. (This behavior, of course, was a large part of the inspiration for the Concerned Archivists Alliance in the first place.)

Trump’s periodic deleting (and correcting) of tweets has raised questions about his administration’s commitment to obeying the Presidential Records Act, which requires all the records of presidential administrations to be preserved for the future and for eventual public release. It strikes me, in addition, as part of Trump’s disdain for facts, evidence, and proof in general.

I contacted the National Archives and Records Administration on this matter, wondering whether they had plans to issue a statement about this very public violence done to the historical record. On September 28th, I received a reply from a member of NARA’s Public and Media Communications Staff, which read:

We received your email asking about the recent deletion of Tweets on an official White House account. Under the Presidential Records Act, records management authority is vested in the President, and the National Archives does not make determinations with respect to whether something is or is not a Presidential record. Rather, the National Archives provides advice and guidance concerning the PRA upon the request of the White House.  

The National Archives has advised the White House that it should capture and preserve all tweets that the President posts in the course of his official duties, including those that are subsequently deleted, as Presidential records, and the National Archives has been informed by White House officials that they are, in fact, doing so.

NARA’s guidance about Presidential tweets is online at https://www.archives.gov/press/press-releases/2017/nr-43

 https://www.archives.gov/files/press/press-releases/aotus-to-sens-mccaskill-carper.pdf 

Questions about the current Administration’s policies and practices under the PRA should be addressed directly to the White House press office, at press@who.eop.gov.

 

This response struck me as a frustrating act of bureaucratic buck-passing. I used to work for NARA once upon a time, and I am well aware that NARA has no real enforcement authority to compel a federal agency or employee to do anything. (As I heard often from NARA staff, “we’re not the records police.”) What NARA has, though, is a moral authority and an appeal to truth and accuracy, which may not have the strength or force of law or federal regulation but which is not nothing. The response I received suggested to me that NARA is content to rest on its position as an advisory body to the White House (we all know how well this particular White House welcomes advice from experts), and to ignore its higher duty to the American historical record.  I wrote back to NARA on September 29th:

So, then, as I understand it, NARA will make no statement about Donald Trump’s blatant disregard for the preservation of the documentary record, and it will continue to rely on the moral sense and integrity of an administration that has demonstrated neither of these. Do you have any evidence that Trump is, in fact, preserving the tweets he later deletes? And even if he is, NARA has no opinion on the issue of access to Trump’s tweets? If Trump deletes these, the public has lost access to them for the foreseeable future, and this is dangerous for government accountability to the public.

As a former employee of NARA, I am deeply saddened by NARA’s apparent supine attitude towards the Trump Administration and its willingness to rest the future of the record of this administration on the willingness of Donald Trump to follow federal records laws. When this is combined with NARA’s acceptance of ICE’s request to destroy records relating to the deaths of people in its custody after 20 years (rather than retain these permanently), I see a troubling slide in NARA’s support of its own mission and its commitment to democracy.

I received, unsurprisingly, no response to this.

NARA is charged with the weighty responsibility of preserving the record of the activities of our government. In a democracy, the right of the people to know what their government has done and is doing is paramount if we are to ensure electoral, legal, and historical accountability. And when we are faced, as we have been since January 20, 2017, with a President who eschews accuracy and truth, who in the face of the nation he supposedly leads tries to blatantly remove evidence of a political blunder, and who has shown in the past clear disrespect for the integrity of information, it is more and more incumbent on NARA to stand up as our national records authority. (Even if that authority carries little to no enforcement mechanism.) In contentious times, when the foundations of our government are at risk, it behooves those bodies vested with the protection of government institutions (in this case, our very history) to rise above the dull language of statute and tradition and business-as-usual and remember what it is they are charged with: the stability and integrity of democracy. NARA, to my mind, is failing in this, both in its non-response to Trump’s deleted tweets and in its acceptance of Immigration and Customs Enforcement’s request to delete certain groups of records [see previous blog entries].

We can only hope that NARA will come to realize that because it is, as it likes to term itself, “the nation’s record keeper”, it owes the nation a commitment to fulfilling that role and to doing what it can – via lobbying for legislative action, public messaging, or other actions – to make evident the danger that history and democracy face in this presidential administration.

-Jeremy Brett

 

The ICE Kerfluffle: A Response (Jeremy)

I deeply appreciate Brad’s thoughtful response to my blog post. It demonstrates his expertise and experience in records management, and it certainly captures the legal and administrative complexities of the issue.  However, it does prove my point (which, of course, came from an impassioned editorial rather than from a deep administrative analysis). Brad’s piece is a perfect example of the type of bloodless neutrality that the ACLU and others, including the CAA, are complaining about. The issue is that records documenting the dehumanization and abuse of human beings by their own government should NOT be treated like ordinary records.

These are not personnel files.

They are not meeting memos.

They are not receipts or contracts or tax forms.

They are the documentation of abuses of power and evidence of unlawful death, and there will only be more of these as this administration winds on. After all, Donald Trump has doubled the number of arrests of noncriminal illegal immigrants, and his disastrous decision on DACA is likely to result in even more troublesome and dangerous interactions between ICE agents and their targets. Brad writes a good essay, much more elegantly and informed than mine, but nowhere do I see him acting as if these records did not document, in some cases, monstrous crimes. And for me, that is the real point, not fine points of records law or records management practices, and not administrative versus historical value.

Jeremy Brett

Issue Alert: ICE Request to Destroy Records

Unfortunately, even as this poor excuse for an administration continues to falter in many places, we are continuing to see a drive among some government employees – people paid by taxpayers – to increase the misery and persecution of their fellow human beings. Immigration and Customs Enforcement (ICE) has been particularly criminal in this regard, and it is sad to say that it is now being enabled in its abusive activities by the National Archives and Records Administration (NARA). It is a reminder that records are not mere documents but – especially in a democratic society – tools for ensuring accountability and for preserving and protecting people’s basic human rights.

ICE has recently sought approval from the National Archives and Records Administration to destroy records documenting deaths and sexual assaults of individuals in its custody after a period of 20 years. ICE has asked for permission to begin routinely destroying 11 kinds of records, including those related to sexual assaults, solitary confinement and even deaths of people in its custody. Other records subject to destruction include alternatives to detention programs; regular detention monitoring reports, logs about the people detained in ICE facilities and communications from the public reporting detention abuses. ICE proposed various timelines for the destruction of these records ranging from 20 years for sexual assault and death records to three years for reports about solitary confinement. According to the American Civil Liberties Union, NARA has approved ICE’s proposal and its explanations for doing so are, to say the least, troubling.

#ThatDarnList: The Saga Continues*

Hi, all!

Those of you who have been following the current controversy on the Archives & Archivists listserv (A&A), which is monitored (though not owned) by the Society of American Archivists and our de facto professional listserv, might be sighing, you might be angry, you might be dumbfounded. But this most recent controversy demonstrated that there is still a serious problem in the archival profession with the mythical concept of archival ‘neutrality’ and with some archivists’ inability or unwillingness to entertain the notion that we can still be unwelcoming or even hostile to minorities in the profession.

Background: The A&A listserv is generally used for people to post about archival-related matters in the news, to ask questions of colleagues about problems or concerns in the workplace, or to post new employment opportunities. To this extent, it is a very useful source, which allows colleagues separated by distance to exchange ideas, opinions, and professional expertise. However, as with most things on the Internet, there is a more troublesome side to the listserv as well.

Every now and again, certain individuals will post what amounts to right-wing propaganda on the listserv. A particularly troublesome individual here is Peter Kurilecz, a retired records manager (and non-SAA member) who has been posting on the listserv for many years. In fact, the listserv developed formal Terms of Participation directly because of Kurilecz’ previous behavior in posting massive numbers of posts, some of which included this kind of propaganda. Kurilecz has a number of defenders in SAA, who see his provision of links as a valuable service, regardless of their content.

On August 7, Kurilecz posted a link to the right-wing site Campus Reform. This is a site devoted to exposing so-called “liberal bias” in higher education, and seems particularly concerned with minorities who are fighting for equity and fairness in education. The site had posted a “story” about the recent SAA Annual Meeting in Portland, and specifically talked about one session – this session was hosted by members of the Archives for Black Lives in Philadelphia group, and featured as a guest a female African-American social activist. In the session, which I attended, participants talked about the development of A4BLIP, and the activist recounted the deep Black roots of the Portland community and the challenges that community faced and faces today in light of other people trying to police access to Black Portlanders’ own history. She talked about a system established to maintain control, to restrict, to mandate, and to deny access.

The Trump “Budget”

The Concerned Archivists Alliance joins with many other interest groups in opposing the ideological fantasy that Donald Trump has chosen to term a “budget”. The purpose of this post is not to discuss the budget as a whole, with the terrible impact it will have on the lives of millions of Americans generally, but to speak specifically against its effect on the cultural agencies of the Federal Government. Bear in mind that the costs to the taxpayer for these agencies is a miniscule percentage of the total federal budget, yet these agencies are crucial to ensuring the continuation of the American cultural economy.

 

This budget is, simply atrocious.

1. It requests $42 million for the National Endowment for the Humanities. Not to fund its continuing activities, but to quote the budget justification, “to begin the orderly closure of the agency”.  In short, this budget terminates the NEH altogether.

 

The NEH has been operating since 1965, having awarded over $5.3 billion through more than 63,000 grants in its 52 years of operation. Those grants have gone towards enriching Americans’ exposure to and understanding of the humanities, from art to literature to film to history. It is an immensely valuable service to Americans and the cultural effects of its loss would be incalculable.

 

1. It eliminates the $230 million budget for the Institute of Museum and Library Services. For the last 20 years, IMLS has done sterling work in providing support to museums and libraries across the country, helping to ensure that cultural institutions may expand and thrive. The funding that IMLS supplies allows libraries serving vulnerable populations to provide their patrons with informational literacy training and help them to gain job-related skills and/or employment. Our museums and library systems are justifiable points of pride in this country; they are among the best of what we can do and what we believe as Americans.  IMLS funding has been critical in maintaining those institutions. This budget treats those institutions as enemies, as obstacles to move aside in the name of nebulous “debt reduction” and ensuring the continued transfer of wealth to the rich.

 

 

1. It eliminates the $148 million budget for the National Endowment for the Arts. The NEA since 1965 has provided over $5 billion in grants to artists and art communities across the nation to support theater, dance, music, literature, film, and arts education. It is one of the federal agencies that should make us the most proud to be Americans, because its existence demonstrates the commitment of a democratic government to preserving and building our national cultural legacy.

 

1. It eliminates the $445 million budget for the Corporation for Public Broadcasting. It is the 40th anniversary of the CPB this year, and in the last four decades it has worked to ensure universal access to quality educational television, primarily through distributing funds to more than 1400 locally owned public television and radio stations. Through both the Public Broadcast Service and National Public Radio, the CPB brings news, music, children’s educational programming, discussions of public affairs, and other important productions to every part of the United States. The CPB has educated, entertained, and enlightened generations of Americans, and if it is eliminated, we will be intellectually and culturally poorer for the loss.

~Jeremy Brett