May 18, 2022

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The Legal System

Senator tells DHS ‘disinformation’ board may be illegal, subject to vote

5 min read


WASHINGTON — The Biden administration’s new Disinformation Governance Board may be illegal and subject to a vote in Congress, a Republican senator is warning Homeland Security Secretary Alejandro Mayorkas.

In a letter to Mayorkas Monday, Sen. Bill Hagerty (R-Tenn.) outlined a legal critique that could set in motion the board’s undoing — as the White House sought to tamp down public concern about the Big Brother-like panel and its controversial head, who has her own past of spreading disinformation.

Hagerty wrote that the board may violate the Antideficiency Act, which says the executive branch can’t spend money unless Congress authorizes it, and that its creation also may be subject to the Congressional Review Act.

“Plainly, this DHS Disinformation Governance Board imposing significant constraints on the bedrock of American values and freedoms and new costs on the American people requires congressional review and may be a violation of the Antideficiency Act,” Hagerty wrote.

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The board — likened by Republicans and also some left-wing and libertarian critics to an Orwellian “Ministry of Truth” — was announced last week shortly after billionaire Elon Musk reached a deal to buy Twitter to implement pro-free speech and anti-censorship reforms.

The board would be led by Nina Jankowicz – a disinformation expert who repeatedly cast doubt on The Post’s reporting on documents from Hunter Biden’s laptop, which the Washington Post and New York Times belatedly verified. She has also come under fire for her own postings to social media including a TikTok in which she jokes about free speech and fake news in a parody of the “Mary Poppins” classic “Supercalifragilisticexpialidocious.”

The DHS board would be led by disinformation expert Nina Jankowicz.
The DHS board would be led by disinformation expert Nina Jankowicz.
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“Establishment of this board will significantly impact Americans’ free speech rights and cuts across numerous areas of government and society,” Hagerty wrote to Mayorkas. “It will change the relationship between the government and the governed to whom it answers. It will also substantially increase administrative costs for the number of different federal agencies engaged in this effort, which will impose increased costs on the American taxpayer.”

Hagerty wrote that the Congressional Review Act, which allows Congress to overturn regulations with a bare majority vote in each chamber, offers a potential route to kill the board. Democrats currently hold narrow margins in the House and Senate and Republicans are favored to retake control next year.

“Under the CRA, an agency action that falls within the definition of a ‘rule’ must be submitted to Congress for review before it can take effect,” he wrote. “[T]he CRA defines a rule as: ‘the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.’”

According to the senator’s office, if an agency doesn’t submit to Congress notice of such a rule, a member of Congress can ask the Government Accountability Office to issue a determination. If the GAO says it’s a rule, Congress gets to have a say under the review act.

“Further, this action may also be a direct violation of provisions of the Antideficiency Act,” Hagerty added, “which prohibits ‘making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law.’”

“In this case, it appears that the amount available for this action is ‘none’ and that Congress explicitly defunded it, just weeks ago,” he continued.

“Section 513 of Division F of the Fiscal Year 2022 Omnibus Appropriations Act (P.L. 117-103) specifically prohibits the Secretary of Homeland Security from using any funds provided by Congress to carry out Section 872 of the Homeland Security Act of 2002, which means it defunded any action to ‘allocate or reallocate functions among the officers of the Department of Homeland Security or to establish, consolidate, or alter organizational units within the Department of Homeland Security.’

“As you know, an officer or employee, including you, who violates the Antideficiency Act ‘shall be subject to appropriate administrative discipline,’ and, for willful violations, faces a criminal fine, imprisonment, or both,” Hagerty went on.

The letter asks Mayorkas to confirm he will make the board reviewable under the Congressional Review Act and notify the White House budget office if DHS violated the Antideficiency Act.

Haggerty wrote to Mayorkas that the creation of the Disinformation Board might be subject to a vote in Congress.
Haggerty wrote to Mayorkas that the creation of the Disinformation Board might be subject to a vote in Congress.
Photo by NICHOLAS KAMM/AFP via Getty Images

White House press secretary Jen Psaki on Monday insisted that the board, whose charge remains poorly defined, would merely continue anti-disinformation work underway during the Trump administration. She highlighted the work of the Cybersecurity and Infrastructure Security Agency. Then-President Donald Trump fired CISA’s director, Chris Krebs, in November 2020 for contradicting his claims about voter fraud.

“It’s continuing work that was done by CISA back to 2020,” Psaki insisted. “So what this would do is continue that work and it would help coordinate internal activities from the department related to disinformation that poses a threat to the homeland. So you gave some examples there — of terrorist threats, of course, but also, you know, which is different than the smugglers work that they do pushing disinformation.

“The mandate is not to adjudicate what is true or false online or otherwise. It will operate in a nonpartisan and apolitical manner. It’s basically meant to coordinate a lot of the ongoing work that is happening,” Psaki said.

“The focus is on disinformation that threatens the homeland — as I noted, which is things like things that would incite violent extremism, you know, human traffickers and other transnational criminal organizations, any efforts at malign foreign influence, anything that would endanger individuals during emergencies. So, a lot of this work is really about work that people may not see every day that’s ongoing by the Department of Homeland Security.”

The Department of Homeland Security and the Justice Department did not immediately respond to The Post’s requests for comment on Hagerty’s letter.



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