Posts

Why Elon Musk Can’t Run DOGE [sic] Anymore

/42 Comments/in , /by

Yesterday, Judge Tanya Chutkan had a Presidents Day hearing on a lawsuit challenging DOGE’s actions. While she reportedly seemed inclined not to grant an emergency restraining order, she did order the government to provide her with two pieces of information: how many people had and were going to be fired, and what Elon Musk’s status is.

In a response and declaration, the government blew off the first question, but on the second, denied that Musk has the power of DOGE. He’s just a senior Trump advisor, one solidly within the White House Office, and so firewalled from the work of DOGE, yet still protected from any kind of nasty disclosure requirements.

But as the attached declaration of Joshua Fisher explains, Elon Musk “has no actual or formal authority to make government decisions himself”—including personnel decisions at individual agencies. Decl. ¶ 5. He is an employee of the White House Office (not USDS or the U.S. DOGE Service Temporary Organization); and he only has the ability to advise the President, or communicate the President’s directives, like other senior White House officials. Id. ¶¶ 3, 5. Moreover, Defendants are not aware of any source of legal authority granting USDS or the U.S. DOGE Service Temporary Organization the power to order personnel actions at any of the agencies listed above. Neither of the President’s Executive Orders regarding “DOGE” contemplate—much less furnish—such authority. See “Establishing and Implementing the President’s Department of Government Efficiency,” Exec. Order No. 14,158 (Jan. 20, 205); “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative,” Exec. Order 14,210 (Feb. 11, 2025).

The statement is quite obviously an attempt to retcon the structure of DOGE [sic], one that Ryan Goodman has already found several pieces of evidence to debunk.

But it is a testament that the suit in question — by a bunch of Democratic Attorneys General, led by New Mexico [docket] — might meet significant success without the retconning of Elon’s role.

Partly for more general benefit, let me talk about the various kinds of lawsuits filed so far against Trump’s attacks.

Kinds of plaintiffs:

  • Imminent, individual personal injury: The cases that have had the most success, so far, are examples of individuals who describe a specific imminent injury. The most obvious such example is a number of Trans women prisoners who’ve argued, successfully so far, that they face a very high likelihood of assault and/or rape if they are moved to male prisons.
  • Unions or other representatives of federal workers: These lawsuits address the imminent injury of privacy violations or firing and other mistreatment. The most successful (and eye-popping) so far has been the American Foreign Service Association lawsuit challenging the USAID shutdown [docket], in which a Doe employee yesterday provided another horrifying declaration describing another instance of a pregnant woman being deprived of promised medevac, and another from a woman in South Africa running up debt taxpayers will have to pay and about to lose access to electricity on the compound. But there are limits to the recourse that unions can seek on both these theories. For example, while Trump appointed judge Carl Nichols imposed a temporary restraining order on actions targeted at employees oversees, he has not done so for the USAID personnel stuck without the ability to fix anything in DC, because being put on paid leave is not the same kind of injury as being stuck overseas with no access to security warnings.
  • States (all with Democratic Attorneys General): The states are arguing a variety of things, both contractual breaches and injuries to their citizens. Contractual challenges may have little ability to halt ongoing destruction.
  • Private entities, like corporations or associations: These entities are often arguing contractual breaches, or privacy damages. The latter are likely to have more success than the former because of the way the Privacy Act works.

Kinds of challenges:

  • Many of these challenges claim a violation of the Administrative Procedures Act, basically arguing that the government changed the rules without going through the process they are required to use to change the rules.
  • Many lawsuits also claim violations of the Privacy Act, which requires that the government follow certain rules if they’re accessing your data in new ways. Thus far, the government has argued that employees have more limited protections than private citizens.
  • Underlying many of these suits are claims about the Impoundment Act and Separation of Powers because the government is not spending money the way Congress said it had to, but argued through an APA challenge. These challenges are particularly important because a key project of Project 2025 is to effectively strip Congress of the power of the purse.
  • Some lawsuits have tried to get at cybersecurity violations or even hacking (Computer Fraud and Abuse Act) claims, but thus far with little success. In any case, those would pivot on how DOGE [sic] got access to various computer systems, and in most cases, a senior Agency official ultimately relented to give them access.
  • This lawsuit, and another similar one brought by 26 anonymous USAID employees, argue that Elon Musk’s role in all this violates the Appointments Clause. This basically argues that Elon is acting as a superior officer, which requires Senate confirmation.

The injury suffered by each set of plaintiffs and legal theory largely limits the ability of judges to weigh in. So, for example, if a suit is arguing only Privacy Act violations, a judge can do no more than limit the dissemination outside of authorized channels of the data of the plaintiffs, something that has been ineffective once agencies started giving DOGE formal authorization to access computer servers. If a suit worries about firings, but the government instead puts tons of people on paid leave (as happened with USAID), then the plaintiffs are not yet suffering an irrevocable injury.

Here’s how the Appointments Clause theory, arguing that Elon is exercising powers that need to be created by Congress and confirmed by them, looks in the complaint.

64. Although he occupies a role President Trump—not Congress—created and even though the Senate has never voted to confirm him, Mr. Mr. Musk has and continues to assert the powers of an “Officer[] of the United States” under the Appointments Clause. Indeed, in many cases, he has exceeded the lawful authority of even a principal officer, or of the President himself.

65. As explained below, Mr. Musk: (1) has unprecedented and seemingly limitless access across the federal government and reports solely to President Trump, (2) has asserted significant and sweeping authority across a broad swath of federal agencies, and (3) has engaged in a constellation of powers and activities that have been historically associated with an officer of the United States, including powers over spending and disbursements, contracts, government property, regulations, and agency viability.

66. In sum, Mr. Musk purports to exercise and in fact asserts the significant authority of a principal officer on behalf of the United States. Yet, he does not occupy an office created by Congress and has not been nominated by the President or confirmed by the Senate. As a result, all of Mr. Musk’s actions are ultra vires and contrary to law.

You can see why the White House has decided that Elon is boxed away inside the White House with no direct control over the dismantling of government bureaucracy. The retconning of his role is all the more obvious when you understand that the right wing judges on SCOTUS feel very strongly about the Appointments Clause. And Trump is on the record relying on it, most spectacularly in convincing Aileen Cannon that Jack Smith had to be confirmed by the Senate before he could indict Trump.

In practice, Trump is saying Elon can dismantle entire agencies without Senate confirmation, but Jack Smith couldn’t prosecute him as a private citizen without it.

Or he was. Now he’s arguing that all this is happening without Elon’s personal direction.

There is plenty in the complaint already that debunks this, not least the narrative of how Elon started disappearing USAID even before, by his own description, Trump approved.

93. With a budget of over $40 billion, USAID accounts for more than half of all U.S. foreign assistance. USAID has missions in over 100 countries. As of January 2025, USAID had a workforce of over 10,000, with approximately two-thirds serving overseas.

94. On Saturday, February 1, 2025, a group of about eight DOGE personnel entered the USAID building and demanded access to every door and floor, despite only a few of them having the requisite security clearance.34 The areas to which they sought access included a sensitive compartmented information facility—commonly known as a SCIF—an ultra-secure room where officials and government contractors take extraordinary precautions to review highly classified information. DOGE personnel, aided by phone calls from Mr. Musk, had pressured USAID officials for days to access the secure facility and its contents.35

95. When USAID personnel attempted to block access to some areas, DOGE personnel, including Mr. Musk, threatened to call federal marshals. Under threat, the agency personnel acquiesced, and DOGE personnel were eventually given access to the secure spaces.

96. Later that day, top officials from USAID and the bulk of the staff in USAID’s Bureau for Legislative and Public Affairs were put on leave. Some of them were not notified but had their access to agency terminals suspended. USAID’s security official was also put on leave.36 97. Within hours, USAID’s website vanished. It remains inoperative.37

98. On Sunday, February 2, 2025, Mr. Musk tweeted, “USAID is a criminal organization. Time for it to die.”

38 Later, he tweeted, “We spent the weekend feeding USAID into the woodchipper.”39

99. Mr. Musk provided no support for his claim that USAID is a criminal organization. 100. On Monday, February 3, 2025, Mr. Musk stated that he was in the process of closing the agency, with President Trump’s blessing. Mr. Musk stated: “I went over it with him [President Trump] in detail, and he agreed that we should shut it down. And I actually checked with him a few times [and] said ‘are you sure?’ The answer was yes. And so we’re shutting it down.”40

Now, before DOJ gave this answer and blew off Judge Chutkan’s order to provide details of the ongoing firing spree, she seemed inclined not to grant a restraining order to stop all this.

It’s unclear whether this defiance will change that. Or, at the very least, whether it will lead to more questions about whether White House wrote any of this down.

What is clear is that the White House recognizes a real risk if Elon is held accountable for all the things Elon has done.

Who Needs Intelligence Sharing?

/26 Comments/in , , , , , /by

On January 27th, an AP story appeared on the news website Military.com with the headline “Intelligence Sharing by the US and Its Allies Has Saved Lives. Trump Could Test Those Ties.” On the surface, it reads like one of those analysis pieces that come out when the White House changes from one party to the next, with the added twist of knowing what the first Trump administration was like.

The Associated Press spoke with 18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence. Many raised questions and concerns about Trump’s past relationship with America’s spies and their ability to share information at a time of heightened terror threats and signs of greater cooperation between U.S. adversaries.

The importance of trust

The U.S. and its allies routinely share top-secret information, be it about potential terror threats, Chinese cyberattacks or Russian troop movements. America’s closest intelligence partners are New Zealand, Australia, Canada and Britain, and it often shares with other nations or sometimes even adversaries when lives are at stake.

[snip]

Cooperation particularly between the U.S. and the U.K. is “strong and robust enough to withstand some turbulence at the political level,” said Lord Peter Ricketts, former U.K. national security adviser and current chair of the European Affairs Committee of the upper chamber of the British Parliament.

However, any strong intelligence relationship is underpinned by trust, and what if “trust isn’t there?” Ricketts said.

Ricketts’ question is no longer a hypothetical. This is the reality faced by intelligence services who in the past have been friendly with the US intelligence community. The AP put out their story on January 27th, and that seems like years ago. Today this reads like a warning.

The takeover of USAID that has played out this past week is *not* just a battle over who runs offices in DC. The bulk of USAID’s staff work overseas, alongside their local partners. When phone calls from these overseas missions back to DC go unanswered, and when US staffers abroad are told to stand down, all those local partners are going to get very, very nervous, and not just because their paychecks stop. They’re going to talk to others in their government, trying to find out what it going on. At the same time, they will be providing input (either directly or indirectly) to their own country’s intelligence service, as their spooks add it to whatever they are learning from elsewhere. In the US, folks worry about those who are losing their jobs; overseas, these fights will result in people dying, like those who don’t get the clean water, medical care, or disease prevention measures like malaria nets. Those other countries are watching with horror the stories of Musk’s minions breaking into sensitive databases, over the objections of trusted career people, and wonder what of their own information is now in the hands of a privateer, and if the same this is (or will be) going on at the CIA, DIA, and other US intelligence agencies.

I guarantee you that all these other countries are watching the battle over USAID much more carefully than folks in the US.

Or look at the targeting of General Mark Milley, widely respected by his counterparts among our allies and within their intelligence services. OK, Biden pardoned him to protect him, but Trump withdrew his security clearance, and also his personal security detail. On January 29th, newly confirmed Secretary of Defense Pete Hegseth launched a process to investigate Milley, seeking to strip him of at least one star, cut his retirement pay, and punish him further. Given what the US attorney for DC is doing by going after DOJ attorneys for investigating the rather noticeable break-in of the US Capitol on January 6, 2021, it’s not hard to imagine that Hegseth’s henchmen will be rather thorough in their work and ruthlessly push aside anyone who gets in their way.

Now imagine you are a member of a foreign intelligence service — perhaps the head, or perhaps a mid-level staffer whose specialty is the US. You see the USAID invasion. You see the public decapitation of the FBI. You see the targeting of career DOJ officials. You see Hegseth paint a target on the back of Milley (and others, like John Bolton and John Brennan). You see all this, much of it in the bright light of public reporting. You hear more from your contacts, who paint more detailed pictures of these purges and fights. You see all this, and you ask yourself two questions, over and over again.

1) Are the things we shared with the US intelligence community in the past safe from being revealed in public, and thus causing us harm?
2) Can we trust the US intelligence community with information we might share with them in the future?

Given what we’ve seen over the last week, the answers to these questions are becoming more and more clear: 1) no and 2) no.

I haven’t talked to those “18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence” to whom the AP spoke. The AP headline was hypothetical – “Trump could test those ties” – but now on February 3rd, it’s real. Trump has been f’ing around with those intelligence service ties, and he’s about to find out what happens.

The short answer is becoming clear, as Trump’s vision of America First becomes America Alone.

 

 

US Endangers Public Health Efforts with Spying, Again

/6 Comments/in /by

Jim and I have both written a bunch about the dangers of using public health campaigns as cover for spying, as CIA did when it asked Dr. Shakeel Afridi to try to collect DNA from those on Osama bin Laden’s compound under cover of a hepatitis vaccination campaign. If those hostile to US interests suspect such campaigns — and even more pointedly, Polio vaccination campaigns — it can taint important efforts.

Today we learn that Afridi’s not the only case where US spooks have done this. As part of a campaign to have Latin American youths encourage oppositional culture in Cuba, USAID contractor Creative Associates had one contractor use an HIV prevention workshop as cover.

In one case, the workers formed an HIV-prevention workshop that memos called “the perfect excuse” for the program’s political goals — a gambit that could undermine America’s efforts to improve health globally.

[snip]

“USAID and the Obama administration are committed to supporting the Cuban people’s desire to freely determine their own future,” the agency said in response to written questions from the AP. “USAID works with independent youth groups in Cuba on community service projects, public health, the arts and other opportunities to engage publicly, consistent with democracy programs worldwide.”

In a statement late Sunday, USAID said the HIV workshop had a dual purpose: It “enabled support for Cuban civil society while providing a secondary benefit of addressing the desire Cubans expressed for information and training about HIV prevention.”

Page 3 of the included documents show the subcontractor describing the HIV training as the perfect excuse, as that was something authorities would permit.

I repeat what I said earlier: Cuba would open up far more quickly if the US ended its embargoes on Cuba, especially its ban on flights to Cuba.

But instead we have to scheme short-sighted plans to open up Cuba clandestinely.

Update: Here’s a more complete description of the HIV training from the extended story.

If the idea was to hold a series of seminars to recruit new “volunteers,” Murillo needed a theme that would both draw in potential recruits and still be sanctioned by the state.

An HIV-prevention workshop was just the thing.

Months later, in November 2010, the workshop drew 60 people. Pozo also participated — evidence, Murillo said, that his scheme was working.

The workshop was supposed to offer straightforward sex education for HIV prevention, such as the proper way to use a condom.

“Cubans expressed a desire for information and training about HIV prevention, and the workshop helped to address their needs,” USAID said in response to written questions.

But the ulterior motive, documents show, was to use the workshop as a recruiting ground for young people by showing them how to organize themselves.

[snip]

Reached in San Jose, Costa Rica, Murillo said he could not speak about the details of his Cuba trips because he had signed a nondisclosure agreement. He said he wasn’t trying to do anything beyond teach people how to use condoms properly.

“I never said to a Cuban that he had to do something against the government. If that was the mission of others, I don’t know,” Murillo said. “I never told a Cuban what he had to do.”

Nevertheless, Murillo’s six-page report back to Creative Associates mentioned HIV only once, to note that it was “the perfect excuse for the treatment of the underlying theme.” Elsewhere, the report revealed another objective: “to generate a network of volunteers for social transformation.”

Update: Jim (who’s prepping his daughter to go off to be-a-lawyer school) reminds me of how USAID fluffs the numbers on its health-related programs to make them look like successes.

The USAID vs SIGAR Pissing Contest

/15 Comments/in , /by

Reuters has a riveting exclusive today in which they have been given a treasure trove of documents from which they have reported on documentation that a contractor involved in USAID highway construction in Afghanistan is employing a subcontractor who is a member of the Haqqani network:

Much of the evidence against Zadran is classified, but the cache of documents given to Reuters by U.S. officials on condition of anonymity show that he has close business ties with the Haqqani network’s leader, Sirajuddin Haqqani.

The Haqqanis, Islamist insurgents who operate on both sides of the Afghanistan-Pakistan border, are believed to have introduced suicide bombing into Afghanistan.

The links between Zadran and the insurgency include him teaming up with Saadullah Khan and Brothers Engineering and Construction Company (SKB), believed to be one of Sirajuddin Haqqani’s companies.

Together they won a $15 million contract to help build a road between the towns of Gardez and Khost in Afghanistan’s east for the U.S. Agency for International Development (USAID) in 2011.

“The owners of these companies are facilitators and commanders of the Haqqani Network,” one U.S. government memorandum says.

This problem fits into the overall work that SIGAR has been doing recently in which they comment on the lack of control and auditing on funds once they are turned over from USAID and other agencies to the Afghan government for disbursement. And huge amounts of money are involved:

The inability over many years to stop firms believed to be supporting the insurgency from winning multi-million-dollar contracts exposes the lack of control that donors have over cash once it is handed over to the Afghan government.

Those transfers make up an increasing proportion of aid. U.S. federal agencies want more than $10.7 billion for reconstruction programs in 2014, SIGAR says, and the government has promised at least half will be granted directly to Afghan institutions to spend as they see fit.

SIGAR has clearly upset a number of folks with their work on this front. Back on October 10, the Atlantic carried a hit piece against SIGAR (I owe Marcy a huge thank you for alerting me to the article) in which we are supposed to believe that USAID has built a public health system in Afghanistan that in just a few years has added 20 years to life expectancy while dropping child mortality by half. And the article would have us believe that this wonderful new system is at risk of being shut down because of SIGAR’s campaign against funds being disbursed by the Afghan government without an audit trail:

John Sopko is the U.S. government’s chief auditor for Afghanistan and a former prosecutor with years of experience on Capitol Hill. In September, Sopko’s office—the Special Inspector General for Afghanistan Reconstruction, or SIGAR—issued a report calling for the suspension of USAID’s $236 million in aid for basic health care in Afghanistan.

Why shut down such a successful program? The short answer is that SIGAR’s is a peculiar concept of caution.

Strikingly, the auditors’ report calling for the funding freeze for the health program doesn’t claim any evidence of serious fraud or waste. Instead, it raises hypothetical concerns about the Afghan government’s ability to manage aid money well, including evidence that some salaries were paid in cash, as well as the absence of double entry bookkeeping.

There is a huge problem with the underlying premise of “such a successful program”, though. It is fabricated bullshit. Here is how the hit piece frames their argument on the successes: Read more →

Six Years Later, US Still Trying to Find a Way to Keep Corrupt Contractor in Afghanistan

/in , /by

The most depressing part of this McClatchy article on the corrupt USAID contracting in Afghanistan by the construction company, Louis Berger, are six-year old quotes calling for an alternative to Berger.

Behind the scenes, U.S. officials repeatedly have voiced frustration about the company’s work.

In May 2004 — three months after then-President George W. Bush publicly praised the company for its quick construction of a section of the Kabul-to-Kandahar Highway — then-U.S. Ambassador Zalmay Khalilzad raised concerns about Louis Berger.

“These problems are now beginning to interfere with the credibility of the U.S. Mission in Afghanistan, and require immediate corrective action,” he wrote.

Later that year, Patrick Fine, USAID’s top official in Afghanistan, questioned the quality of schools and clinics whose construction was overseen by Louis Berger. “It is time to cut our losses and put in place an alternative strategy,” he wrote.

Yet six years later, DOJ is preparing to sign either a non-prosecution or a deferred prosecution agreement with the company so that Louis Berger can continue to work in Afghanistan.

The decision to brush aside the allegations and the evidence and keep doing business with Louis Berger, underscores a persistent dilemma for the Obama administration in Afghanistan and elsewhere.

Cutting ties with suspect war-zone contractors in Afghanistan would threaten the administration’s effort to rebuild the country and begin withdrawing some of the nearly 100,000 U.S. troops there next July.

You know all those articles about the corruption of Karzai’s government? The claims that Afghans are just more tolerant of corruption than Americans? The suggestions that, because it’s a developing country, Afghans have to and do learn to tolerate corruption?

Either we’ve become a banana republic sooner than most people realized (perhaps with the FL county in 2000? Or before that?). Or all those attempts to blame Afghan culture for the corruption there are just lame excuses invented to help us overlook our own apparently intractable tolerance for corruption.

But one way or another, it helps to make Afghanistan far too expensive to achieve whatever “victory” our government pretends to be pursuing.

Portfolio Items