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Commissary Cheap

Most of the veterans I follow on Twitter are pointing to this WaPo story on DOD’s failure to eliminate commissaries on bases as an example of the worst of DOD bureaucracy.

Three summers ago, Richard V. Spencer, a retired investment banker who serves on a Pentagon advisory board, proposed shutting down the commissary at Camp Lejeune and every other domestic military base, a step that would save taxpayers about $1 billion a year.

He called several large retailers to see if they would be willing to take over the markets. None were, but Wal-Mart, which has stores within 10 miles of most U.S. bases, proposed offering equivalent discounts to troops, their spouses and their retired brethren. He figured other national chains would follow suit.

When the Defense Department bureaucracy that runs the commissaries learned of Spencer’s plan, it sounded an alarm among allies in industry and in Congress. A trade group whose mission is to represent companies that sell goods in military stores fired off a letter to Defense Secretary Robert M. Gates, warning him it would be “ill-advised” to make major changes. Senators and representatives dispatched similar missives. So did veterans groups. As the correspondence stacked up in his inbox, Gates summoned Spencer and other members of the Defense Business Board.

“Richard, my fax machine is vomiting letters of complaint,” Spencer recalled Gates telling him. Worried that congressional anger would doom other Pentagon cost-cutting initiatives, Gates told Spencer to drop his commissary plan.

Maybe it is, but there are several things not being discussed.

First, the article points out that the commissary benefit is worth $4,400 a year to every military family. Most of those families are getting paid pretty low wages for a job that can kill you — $28,000 for a Corporal or Specialist with 4 years of experience. Is it any wonder that some in the military are defending this benefit?

Then there’s the shock that retired investment banker Richard Spencer (who probably hasn’t had to live on $28,000 a year for a very very long time, if ever) had when he discovered the commissary’s books can’t be audited.

What little that arrived stunned him. The agency’s antiquated financial systems, he learned, are not compliant with the federal government’s accounting standards.

That is a problem. But you know what? I’m far, far more concerned that NSA’s antiquated financial systems are also not compliant with the federal government’s accounting standards (apparently neither are a number of other intelligence community components), and not just because the dollars involved are far larger. I don’t have to worry about unaccounted Cheerios on a commissary shelf starting a new war or reading my email via some off the books program that evades Congressional scrutiny because its budget does.

Then there’s the assessment that retired investment banker Richard Spencer made that DOD isn’t very good at running supermarkets.

Its workforce was bloated compared with other retailers.

[snip]

Spencer also discovered that the agency’s annual subsidy did not include other hidden costs. Commissaries don’t have to pay rent. Security services, when needed, are provided by military police.

It didn’t take Spencer long to come to a basic conclusion: “Running a chain of grocery stores is not a core competency of the Defense Department.”

He thought about proposing that a private company be hired to run the stores. But when he called up several large national retailers, including Wal-Mart, Costco and three grocery chains, he got the same response. “We don’t want this,” he recalled being told. Too many employees, they said, and they would be unable to lure non-military customers onto access-controlled bases.

He’s comparing commissaries, of course, with WalMart. Which has been getting a lot of press this year for its difficulties stocking shelves, in part because it has cut staff so thin that there aren’t enough people to get all the merchandise onto shelves.

Maybe, when consumers have the leverage to make demands, they prefer shopping in place with better service than WalMart? Maybe that, like better healthcare, is one of the reasons people will risk their life to join the military?

But here’s the funniest part of this story. The Administration is, as we speak, making a sustained argument that commissary employees are “sensitive” employees. It argued–really!–that because a commissary Assistant Manager knew how much Gatorade and sunglasses commissary customers were buying (potentially reflecting knowledge of upcoming deployments)–he should lose all Merit Board protection as a sensitive employee.

Now I, of course, thinks that’s a load of horse dung. Nevertheless, it is the horse dung the Executive is peddling. And so long as it is peddling that horse dung, it seems incumbent upon the Executive to keep this nice perk around.

It may be that the billion we’d save by shutting down commissaries would be a net savings once you adjust for the higher wages you’d have to pay lower-ranking service members in exchange. It may be the commissaries are hopelessly unwieldy.

But I’m very skeptical that this perk — and not the much bigger ticket waste — is the first thing that should be cut to save money.

Appeals Court Treats Commissary Gatorade Supplies as a “Clear and Present Danger”

Navy v. Egan–the SCOTUS case Executive Branch officials always point to to claim unlimited powers over classification authority–just got bigger.

Berry v. Conyers extends the national security employment veto over commissary jobs

The original 1988 case pertained to Thomas Egan, who lost his job as a laborer at a naval base when he was denied a security clearance. He appealed his dismissal to the Merit Systems Protection Board, which then had to determine whether it had authority to review the decision to fire him based on the security clearance denial. Ultimately, SCOTUS held that MSPB could not review the decision of the officer who first fired Egan.

The grant or denial of security clearance to a particular employee is a sensitive and inherently discretionary judgment call that is committed by law to the appropriate Executive Branch agency having the necessary expertise in protecting classified information. It is not reasonably possible for an outside, nonexpert body to review the substance of such a judgment, and such review cannot be presumed merely because the statute does not expressly preclude it.

Unlike Egan, the plaintiffs in this case did not have jobs that required they have access to classified information. Nevertheless, plaintiffs Rhonda Conyers (who was an accounting clerk whose “security threat” pertained to personal debt) and Devon Haughton Northover (who worked in a commissary and also charged discrimination) were suspended and demoted, respectively, when the government deemed them a security risk.

In a decision written by Evan Wallach and joined by Alan Lourie, the Federal Circuit held that the Egan precedent,

require[s] that courts refrain from second-guessing Executive Branch agencies’ national security determinations concerning eligibility of an individual to occupy a sensitive position, which may not necessarily involve access to classified information.

That is, the Federal government can fire you in the name of national security if you have a “sensitive” job, whether or not you actually have access to classified information.

As Timothy Dyk’s dissent notes, the effect of this ruling is to dramatically limit civil service protections for any position the government deems sensitive, both within DOD–where both Conyers and Northover work–and outside it.

Under the majority’s expansive holding, where an employee’s position is designated as a national security position, see 5 C.F.R. § 732.201(a), the Board lacks jurisdiction to review the underlying merits of any removal, suspension, demotion, or other adverse employment action covered by 5 U.S.C. § 7512.

[snip]

As OPM recognizes, under the rule adopted by the majority, “[t]he Board’s review . . . is limited to determining whether [the agency] followed necessary procedures . . . [and] the merits of the national security determinations are not subject to review.”

In doing so, the dissent continues, it would gut protection against whistleblower retaliation and discrimination.

As the Board points out, the principle adopted by the majority not only precludes review of the merits of adverse actions, it would also “preclude Board and judicial review of whistleblower retaliation and a whole host of other constitutional and statutory violations for federal employees subjected to otherwise appealable removals and other adverse actions.” Board Br. at 35. This effect is explicitly conceded by OPM, which agrees that the agency’s “liability for damages for alleged discrimination or retaliation” would not be subject to review. OPM Br. at 25. OPM’s concession is grounded in existing law since the majority expands Egan to cover all “national security” positions, and Egan has been held to foreclose whistleblower, discrimination, and other constitutional claims.

Tracking Gatorade supplies can now represent a “clear and present danger”

There are a couple of particularly troubling details about how Wallach came to his decision. In a footnote trying to sustain the claim that a commissary employee might be a national security threat, Wallach argues that Northover could represent a threat in the commissary by observing how much rehydration products and sunglasses service members were buying.

The Board goes too far by comparing a government position at a military base commissary to one in a “Seven Eleven across the street.”

[snip]

Commissary employees do not merely observe “[g]rocery store stock levels” or other-wise publicly observable information. Resp’ts’ Br. 20. In fact, commissary stock levels of a particular unclassified item – sunglasses, for example, with shatterproof lenses, or rehydration products – might well hint at deployment orders to a particular region for an identifiable unit. Read more