WASHINGTON – Following a model of secrecy that has allowed the Bush administration and its appointees to withhold documents from the courts, Congress and the public, Interior Department officials have rejected the Schaghticoke Tribal Nation’s request for two documents concerning Associate Deputy Secretary James Cason’s job performance evaluations.
Last month, Interior ‘‘reconsidered’’ its previous refusal to release Cason’s Senior Executive Service Performance Plan for 2004 and 2005, and provided the tribe with ‘‘revised format’’ copies, but redacted all the textual substance of Cason’s job performance reviews.
It was ‘‘an act of high cynicism’’ that ‘‘offends the purpose of the Freedom of Information Act,’’ the tribe’s attorney, Thomas Murphy of Cowdery, Ecker & Murphy, wrote in a Sept. 5 filing with the U.S. District Court in New Haven. He asked the court to order Interior to disclose the entire, unedited documents promptly.
The tribe is working toward a Sept. 24 deadline to file a motion for summary judgment in its appeal of the BIA’s unprecedented decision in October 2005 to strip the tribe of the federal acknowledgement the agency itself had granted in January 2004.
The appeal names Interior and its officials as defendants, and claims the reversal of the tribe’s acknowledgement was due to unlawful political influence and violations of due process, among other issues.
The appeal also challenges Cason’s authority to overturn the tribe’s federal status.
The tribe contends that Cason’s action as the ‘‘decision maker’’ violated the Appointments Clause of the Constitution because he was acting as a ‘‘principal officer’’ of the United States without being nominated by the president and approved by Congress and the Vacancies Reform Act, which was passed to enforce the Appointments Clause.
The unedited versions of Cason’s job reviews are sought to help determine the scope of Cason’s responsibilities and authority.
It is not clear what the implication would be concerning Cason’s other high-level decisions if the tribe’s arguments are upheld.
‘‘My memory is that the regulations for federal recognition are kind of specific about who’s supposed to make the decision,’’ said John Dossett, general counsel for the National Congress of American Indians. ‘‘My guess is [if the argument is upheld] it may affect other recognition decisions, but it may not affect other decisions.’‘
Cason also overturned the Eastern Pequot Tribal Nation’s acknowledgement, denied acknowledgement to the Burt Lake Band of Ottawa and Chippewa Indians and the St. Francis/Sokoki Band of Abenaki, and approved acknowledgement for the Mashpee Wampanoags.
The STN filed a FOIA request for Cason’s documents in January and sued in June after Interior released ‘‘a number of largely insignificant documents,’’ Murphy wrote, but withheld the critical job reviews.
U.S. Attorney Kevin O’Connor, representing Interior, said in court papers that the tribe could gauge the scope of Cason’s work from the documents provided. He argued that job reviews are protected as ‘‘medical and personnel records’’ and shielded under the government’s ‘‘deliberative process.’‘
Cason was named associate deputy secretary – a title that had not been used for more than a decade and does not appear on Interior’s organizational chart on its Web site – by former Interior Secretary Gale Norton in August 2001.
In February 2005, when the duly appointed and confirmed Assistant Secretary of Indian Affairs Dave Anderson resigned, Norton issued an order relegating all of the assistant secretary’s responsibilities, duties and functions to Cason.
Cason, therefore, was authorized to perform the duties assigned to him and ‘‘was clearly not engaged in wrongdoing,’’ O’Connor said.
Murphy refuted O’Connor’s claim.
‘‘A high level official acting outside the contemplation of the Constitution and federal stature surely amounts to ‘wrongdoing,’‘’ Murphy wrote.
O’Connor became involved in the STN appeal in April when then-Attorney General Alberto Gonzales named him as his chief of staff. O’Connor was appointed by Bush and unanimously approved by Congress in 2002.
O’Connor is the U.S. attorney for the District of Connecticut, where a relentless campaign of political opposition to STN federal recognition was led by state Attorney General Richard Blumenthal.
Murphy wrote that the claimed exemptions are attempts to withhold Cason’s job performance reviews in order minimize the tribe’s ability to challenge his ‘‘questionable appointment.’‘
The administration had good reason to avoid Senate scrutiny, Murphy said, because Cason ‘‘is already a scarred veteran of that process.’’ In 1989, President George H.W. Bush withdrew Cason’s nomination for assistant secretary in the Agriculture Department when it became clear he would not be approved.
Murphy also noted that Interior ‘‘was hardly a pristine organization’’ in 2004 and 2005. Steven Griles, the deputy secretary at that time and Cason’s close friend and supervisor, pleaded guilty earlier this year to obstruction of justice in the Jack Abramoff scandal, Murphy noted.
The two men have known each other since the 1980s and Griles was best man at Cason’s wedding 17 years ago, according to a letter Cason wrote in May, asking the judge for leniency in sentencing his friend.
Among the records Interior released are documents giving Cason Special Thanks for Achieving Results (STAR) awards of $7,000 in 2004 and in 2005.
The awards were approved by the Executive Resources Board, a body of top-level officials appointed by the secretary of Interior that recommends Senior Executive Service members’ merit pay and recognition awards.
The board was in the news last spring when former U.S. Fish and Wildlife Service Deputy Assistant Secretary Julie MacDonald, a Bush appointee who received a $9,628 STAR award for her work in 2004, resigned following a scathing report by the inspector general of political interference in scientific reports and abusive managerial behavior.
According to the Endangered Species and Wetlands Report, a nonprofit environmental organization, MacDonald received the $9,628 windfall without the required paperwork justifying what she did to deserve it.
Both Cason and Griles were members of the board in 2004, and Cason remains on the board now, according to an Interior spokesman.
Griles signed off on Cason’s $7,000 award in 2004, according to the documents Interior has released, but the records do not show why Cason received $14,000 in STAR awards.
Cross-posted from Indian Country Today and The Corner Report