By Dan Froomkin
Special to washingtonpost.com
Tuesday, November 18, 2008; 1:11 PM

It happens every time a president leaves office: Some of his political appointees don't want to go, so they "burrow in" to the civil service.

There are relatively benign reasons for burrowing in, such as financial security. But there is also the potential for ideological mischief-making.

So the question we ask ourselves today is: Are Bush and Cheney loyalists entrenching themselves into the federal bureaucracy in order to make it difficult for their successors to roll back their policies?

The burrowing-in of the Bushies has been underway in various agencies for some time now, and there are signs that as a result, the Obama administration could face resistance from within on some key areas.

Juliet Eilperin and Carol D. Leonnig write in The Washington Post: "Just weeks before leaving office, the Interior Department's top lawyer has shifted half a dozen key deputies -- including two former political appointees who have been involved in controversial environmental decisions -- into senior civil service posts.

"The transfer of political appointees into permanent federal positions, called 'burrowing' by career officials, creates security for those employees, and at least initially will deprive the incoming Obama administration of the chance to install its preferred appointees in some key jobs. . . .

"Between March 1 and Nov. 3, according to the federal Office of Personnel Management, the Bush administration allowed 20 political appointees to become career civil servants."

Alarming? One the one hand, Eilperin and Leonnig write: "The practice of placing political appointees into permanent civil service posts before an administration ends is not new. In its last 12 months, the Clinton administration approved 47 such moves, including seven at the senior executive level. Federal employees with civil service status receive job protections that make it very difficult for managers to remove them."

But on the other, they note: "The personnel moves come as Bush administration officials are scrambling to cement in place policy and regulatory initiatives that touch on issues such as federal drinking-water standards, air quality at national parks, mountaintop mining and fisheries limits."

The announced goal of the Interior Department move was to reduce disruptive turnover, but "environmental advocates, and some rank-and-file Interior officials who spoke on the condition of anonymity for fear of hurting their careers, said the reassignments represent the Bush administration's effort to leave a lasting imprint on environmental policy," Eilperin and Leonnig report.

Joe Davidson wrote in his Washington Post Federal Diary column earlier this month that "this is burrowing season." He called attention to an October report from the Congressional Research Service which warned:

"While such conversions may occur at any time, frequently they do so during the transition period when one administration is preparing to leave office and another administration is preparing to assume office."

Carrie Johnson wrote in The Washington Post in July: "Two leading Senate Democrats asked Attorney General Michael B. Mukasey yesterday to 'exercise vigilance' and ensure that political appointees do not improperly wheedle their way into permanent slots at the beleaguered Justice Department.

"Sens. Charles E. Schumer (N.Y.) and Dianne Feinstein (Calif.) wrote to department leaders seeking 'personal assurances' that they would monitor employment decisions at Justice as the Bush administration draws to a close.

"'When unqualified political appointees take over jobs better left to skilled candidates, it threatens the agency's professionalism and independence,' Schumer said. 'We don't need ideological stowaways undermining the work of the next administration.'"

But Daniel Schulman writes in the current issue of Mother Jones that "last-minute vigilance is often too little too late, says Carol Bonosaro, the president of the Senior Executives Association, whose nearly 3,000 members span the federal bureaucracy. 'If you're smart,' she says, 'you do it earlier.' . . .

"As early as 2006, the Government Accountability Office reported that 144 employees in 23 agencies had converted from noncareer to career positions. In some cases, jobs seemed tailored to the strengths of the applicants, if not created for them outright. In others, standard competitive hiring procedures appeared absent. And in three instances, political staffers received career positions even though they lacked the requisite 'qualifications and/or experience.' . . .

"The current White House has even managed a variation on burrowing that bypasses the political appointment process -- directly seeding the civil service with ideologues whose influence may be felt for decades to come."

Ben Whitford wrote earlier this month in Plenty magazine about potential obstructions that Obama will face at the Environmental Protection Agency in particular: "[S]ome observers worry that over the past eight years, Bush loyalists have 'burrowed down' (in agency parlance) from appointed positions to permanent staff jobs from which they could potentially block efforts to put the agency back on track. There are no precise numbers, says Francesca Grifo, director of the Union of Concerned Scientists' Science Integrity Program, but it's likely that across the federal government many hundreds of Bush appointees have secured permanent positions, often in key roles from which they could effectively impede reform. 'We're going to be working to keep track of these folks,' says Grifo. 'We can't assume a priori that every single appointee who's stayed on is going to be evil the rest of their days, but we're going to be watching very closely.'"

In some cases, of course, the burrowing is not ideological in nature. Christopher Lee wrote in The Washington Post last year: "[N]o matter how much some in the Bush administration seem to look down on government, no matter how many say they long to return to the private sector or spend more time with family, a few political folks, in the end, will decide that they would rather not part ways with Uncle Sam. So they will try to stick around, angling to turn their short-term stint in an administration of their choice into a permanent job amid the ranks of career civil servants and federal executives.

"'Remember, not everybody who comes in is going to have a very high-profile job where they are going to be able to leave and make really good money,' said Carol A. Bonosaro, president of the Senior Executives Association, which represents career executives in the federal government. 'Not everyone has had necessarily a strong enough background to go back out. They may just have been a campaign worker.'

"Burrowing in often looks like an especially good option to younger political appointees, people in their 20s who hold positions such as deputy chief of staff or assistant to the assistant secretary, said Paul C. Light, a professor of government at New York University. Most cannot easily make the leap to a lucrative job on K Street or elsewhere, he said.

"'The paycheck is the driver here,' Light said. 'A lot of appointees will think, "I don't have anywhere to go." . . . My sense is that they burrow in because there is pay, benefits and security involved -- precisely the things that they complain about as barriers to effective [government] performance.' "

Or, as Dale McFeaters writes in his Scripps Howard opinion column: "Republicans may deride Washington bureaucrats, but when their party is thrown out of office they desperately want to be one."

Back in June, I wrote about burrowing in, midnight rulemaking and other actions Bush loyalists could take to slow down a rollback in a series of stories on NiemanWatchdog.org, where I am deputy editor. Among the other things reporters should be keeping an eye out for: last-minute reorganizations, big contracts and legal settlements, and intrusive executive orders.

And right on cue, just arriving in my inbox is Bush's latest executive order. This one sets out a fairly extensive procedure whereby the secretary of transportation is charged with establishing and maintaining "a national air transportation system that meets the present and future civil aviation, homeland security, economic, environmental protection, and national defense needs of the United States" -- all long after Bush leaves office.

Robert Pear writes in the New York Times: "A last-minute Bush administration plan to grant sweeping new protections to health care providers who oppose abortion and other procedures on religious or moral grounds has provoked a torrent of objections, including a strenuous protest from the government agency that enforces job discrimination laws.

"The proposed rule would prohibit recipients of federal money from discriminating against doctors, nurses and other health care workers who refuse to perform or to assist in the performance of abortions or sterilization procedures because of their 'religious beliefs or moral convictions.'

"It would also prevent hospitals, clinics, doctors' offices and drugstores from requiring employees with religious or moral objections to 'assist in the performance of any part of a health service program or research activity' financed by the Department of Health and Human Services. . . .

"Officials at the Health and Human Services Department said they intended to issue a final version of the rule within days. Aides and advisers to Mr. Obama said he would try to rescind it, a process that could take three to six months.

"To avoid the usual rush of last-minute rules, the White House said in May that new regulations should be proposed by June 1 and issued by Nov. 1. The 'provider conscience' rule missed both deadlines.

"Under the White House directive, the deadlines can be waived 'in extraordinary circumstances.' Administration officials were unable to say immediately why an exception might be justified in this case."

Lara Jakes Jordan writes for the Associated Press: "Barack Obama's incoming administration is unlikely to bring criminal charges against government officials who authorized or engaged in harsh interrogations of suspected terrorists during the George W. Bush presidency. Obama, who has criticized the use of torture, is being urged by some constitutional scholars and human rights groups to investigate possible war crimes by the Bush administration.

"Two Obama advisers said there's little -- if any -- chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

"The advisers spoke on condition of anonymity because the plans are still tentative. A spokesman for Obama's transition team did not respond to requests for comment Monday.

"Additionally, the question of whether to prosecute may never become an issue if Bush issues pre-emptive pardons to protect those involved. . . .

"After he takes office in January, Obama is expected to create a panel modeled after the 9/11 Commission to study interrogations, including those using waterboarding and other tactics that critics call torture. The panel's findings would be used to ensure that future interrogations are undisputedly legal."

Hilzoy blogs for the Washington Monthly: "This is a big mistake. It is enormously important that we establish the principle that members of the government cannot break the law with impunity, and we cannot do that without being willing to prosecute them when, as in this case, there is overwhelming evidence that they violated the law. This is especially true of the most senior members of government, like the Vice President.

"That said, I can easily see why Obama might not want to do this. The problem isn't just that it would be bad for him to be seen as carrying out a partisan witch hunt; it would also be bad for the law, and for these prosecutions, if they were seen as a partisan witch hunt.

"Luckily, there's a fairly obvious solution to this problem. Obama should appoint a special prosecutor."

Eugene Robinson writes in his Washington Post opinion column that "the Bush administration sought to numb Americans to what has traditionally been seen as a clear moral and legal imperative: the requirement that individuals taken into custody by our government be treated fairly and humanely. . . .

"The new Obama administration has a duty to conduct its own investigation and tell us exactly what was done in our name. Realistically, some facts are going to be redacted. Realistically, some officials who may deserve to face criminal charges will not. But to restore our national honor and heal our national soul, we at least need to know."

James Risen and Eric Lichtblau write in the New York Times: "President-elect Barack Obama will face a series of early decisions on domestic spying that will test his administration's views on presidential power and civil liberties.

"The Justice Department will be asked to respond to motions in legal challenges to the National Security Agency's wiretapping program, and must decide whether to continue the tactics used by the Bush administration -- which has used broad claims of national security and 'state secrets' to try to derail the challenges -- or instead agree to disclose publicly more information about how the program was run.

"When he takes office, Mr. Obama will inherit greater power in domestic spying power than any other new president in more than 30 years, but he may find himself in an awkward position as he weighs how to wield it. . . .

"Advisers to Mr. Obama appear divided over whether he should push forcefully to investigate the operations of the wiretapping program, which was run in secret from September 2001 until December 2005."

Peter Finn writes in The Washington Post: "The chief military judge at Guantanamo Bay announced his immediate retirement yesterday, effectively scuttling the slim chances that the trial of conspirators in the Sept. 11, 2001, attacks could get underway before the Bush administration ends. . . .

"It has long been a goal of some Pentagon officials, particularly those appointed by the Bush administration, to begin the capital trial of the Sept. 11 conspirators before leaving office."

Michael Abramowitz writes in The Washington Post that by agreeing to a fixed deadline for the withdrawal of U.S. forces from Iraq, Bush may "have given President-elect Barack Obama more flexibility in fulfilling his campaign promise to bring the troops home.

"Obama pledged during the campaign to withdraw the remaining U.S. combat troops in 16 months, at roughly the rate of one combat brigade a month. The plan tentatively approved in Baghdad yesterday would essentially give Obama until the end of 2011 to pull out all U.S. forces, while also putting the imprimatur of the Bush administration on the idea that there needs to be an ironclad deadline for troop removal. . . .

"Bush administration officials acknowledged yesterday that the timetable laid out in the final agreement is not what the president wanted originally but said that they could go along with it because of a decline in violence in Iraq in the past year."

Laurent Lozano writes for AFP that "the White House sought to put a positive spin on the pact and the pace of a US withdrawal."

Indeed. Here's Press Secretary Dana Perino at yesterday's briefing:

Q. "Dana, I would like to ask about Iraq. The President has said for months that he opposed any timetable and that any decision should be based on conditions on the ground. How much is the latest agreement a departure -- "

Perino: "As we've been saying since July, when we said that we would work with the Iraqis to establish a date that we would aspire to -- we just keep getting success after success on the security front in Iraq. And when you work with a partner on a negotiation, you have to concede some points. One of the points that we conceded was that we would establish these aspirational dates. We're only able to do this because of the progress that's been made by the great work of our forces, and by the Iraqi security forces as well. They, every day, gain in number, confidence and competence. And we are going to continue to work with the Iraqis, because while we did have a good step with the council of ministers approving the agreement, and then our ambassador and their foreign minister signing it today, there are still several steps left to go."

Get that? The strict timetable insisted upon by the Iraqis is still just aspirational.

Meanwhile, Bryan Bender writes for the Boston Globe: "President-elect Barack Obama's signature campaign promise to withdraw US combat troops from Iraq within 16 months of taking office appears to be on a collision course with the nation's military brass, if comments yesterday from the chairman of the Joint Chiefs of Staff are any indication.

"In his first press conference since the election, Admiral Michael G. Mullen said he believes that the soonest all US forces could be safely withdrawn from Iraq is 'two to three years.'

"'We have 150,000 troops in Iraq right now,' the nation's top military officer told reporters at the Pentagon. 'We have lots of bases. We have an awful lot of equipment that's there. And so we would have to look at all of that [and] the security conditions that are there. And clearly we'd want to be able to do it safely.'"

The Los Angeles Times editorial board writes: "Finally, we think we see light at the end of the Iraq tunnel. . . .

"[A]lthough President Bush long opposed it, there is a timetable at last, and one that could mark the beginning of the end of the U.S. occupation of Iraq. . . .

"A pullback from Iraq would allow the United States to restore its credibility abroad and, just as important, to begin to heal the wounds inflicted by the war at home."

Alec MacGillis writes in The Washington Post: "Although Obama has shown a fondness for surrounding himself with big thinkers and visionary experts, his White House hires suggest that his West Wing, at least, will place a premium on skilled legislative practitioners.

"Congressional Democrats are taking the hires of Hill veterans as an encouraging sign that Obama -- the first member of Congress to be elected president since John F. Kennedy -- plans to work closely with them, which they regard as a welcome change from Bush's administration, which even many Hill Republicans said left them out of the loop.

"The staff choices 'represent a new era in cooperative relations between the White House and Congress,' said Rep. Robert Wexler (D-Fla.). 'It bodes well for an extraordinary period of legislative accomplishment -- for creating an atmosphere in which legislative victories will be maximized.' . . .

"But some veterans of Republican White Houses are asking how Obama's promise of a clean break with the past squares with his elevation of so many Washington insiders skilled in partisan warfare.

"'This is more 'Groundhog Day' than a fresh start,' said Peter Wehner, a former senior adviser to Bush who is a fellow at the Ethics and Public Policy Center."

Former U.S. pardon attorney Margaret Colgate Love, writing in a Washington Post op-ed, does not weigh in on blanket pardons for members of Bush's own administration. But she argues that Bush shouldn't be so penurious with the traditional kind of pardon.

"A series of final pardons could highlight flaws in the justice system that would be instructive to the next administration," Love writes. "The Framers considered the pardon power an integral part of our system of checks and balances, not a perk of office. Judicious grants of clemency can signal to Congress where rigid laws should be amended and give policy guidance to executive officials. The president's intervention in a case through his pardon power benefits an individual but also signals how he wants laws enforced and reassures the public that the legal system is capable of just and moral application.

"It is ironic that a president who has stretched his other constitutional powers to the breaking point has been so reticent and unimaginative in using the one power that is indisputably his alone. A course change would be fitting from someone who has spoken of the power of forgiveness in his own life and of America as 'the land of second chance.' He need not risk reenacting the drama of the final Clinton grants; surely there are many worthy cases in the Justice Department's pardon pipeline."

Bush keeps on finding time in his busy schedule to meet with victorious sporting figures. The Associated Press reports that he "celebrated Monday with American golfers who reclaimed the Ryder Cup for the U.S. . . .

"He told them he avidly followed 'every minute' of their play."

Joel Garreau writes in The Washington Post: "Stan Lee, who helped create hundreds of comic book superheroes, including 'Spider-Man,' and Olivia de Havilland, 92, who was nominated for an Academy Award in 1939 for her portrayal of Melanie Hamilton in 'Gone With the Wind,' were among the recipients of the National Medal of Arts and the National Humanities Medal at the White House yesterday."

And the Associated Press notes there were some surprise winners yesterday as well: "At an East Room ceremony honoring this year's recipients of the National Medals of Arts and National Humanities Medals, Bush added to the list. He announced he was conferring the Presidential Citizens Medal on four people who have served in his administration. . . .

"The recipients of the award -- among the highest honors that can be conferred on a citizen -- were present, but had no idea what was coming. They are Bruce Cole, chairman of the National Endowment of Humanities; Dana Gioia, chairman of the National Endowment of the Arts; Adair Margo, chairman of the President's Committee on the Arts and Humanities; and Bob Martin, former Director of the Institute of Museum and Library Services. Martin's successor, Anne Radice, received the medal, too, but could not attend the ceremony."

Tom Toles on the end of torture, Pat Bagley and Ed Gamble on Bush's departure.