But one aspect amid the increases has not changed -– there has been no federally-mandated minimal level of oversight for facilities run by private prisons.

There are three main issues that worry critics about the lack of oversight in privatized facilities: the standards of confinement, the cost oversight and the ability to get information on either of these points from privately-run detention facilities.

“I think that prisons are closed institutions in general as they are outside the public view … and most citizens have very little understanding of what goes on behind the closed doors,” said Michele Deitch, a senior lecturer at the University of Texas School of Law. “But that changes dramatically when looking at private prisons.

“They are not subject to the same requirements about open records, the sharing of public information,” Deitch continued, “and because they have a contract with the government, not directly with the people, there is a layer of bureaucracy and privacy that is even deeper.”

This growth has been led by a handful of companies, including the two largest private prison companies, Corrections Corporation of America (CCA), which partners with all three federal corrections agencies, according to its website, and “almost half of all states and several municipalities;” and GEO Group, which runs prisons outsourced by federal, state and local prison bureaus as well as immigration facilities around the country.

CCA houses 75,000 inmates at more than 60 facilities in 19 states, and GEO Group follows closely behind with more than 60 facilities in more than 15 states, as well as a prison health-care arm.

According to the U.S. Department of Justice (PDF), the growth of the inmate population in private prisons is 5 percent a year. This does not include jails or immigration detention facilities. In the latter, private companies control nearly half of all detention beds.

Private prison oversight so far

Historically, federal courts have stepped in to oversee particularly egregious examples of prison abuse, but because no federally-mandated minimal level of oversight exists, how private contractors are watched depends on the locality doing the contracting.

“The issue of transparency is really big,” said Mel Wilson, assistant director of Officer Workforce Studies at the National Association of Social Workers. “If you look closely at the criminal justice system, each state has a lot of latitude in structuring what level of oversight it has.”

At the federal level, the Office of Federal Detention Trustee (OFDT) was created in 2000 to provide oversight of federal prisons, but the creation of the Department of Homeland Security in 2003 — and decreased focus on the detention crisis — has left the OFDT to function primarily as a Department of Justice agency that contracts out prisons with private companies, according to a 2010 report from the Center for International Policy.

Immigrations and Customs Enforcement (ICE) also established an Office of Detention Oversight in 2009 to look over the then-32,000 detention beds in 350 facilities. Most of these were not run by ICE employees, the ICE fact sheet noted, but were “operated by county authorities or detention centers operated by private contractors.”

Both CCA and GEO Group, the biggest players in the private-corrections-facility game, lobby directly to some of these agencies. In 2011, CCA spent $810,000 on lobbying agencies including the U.S. Marshals Service, which awards private-prison contracts, and the Bureau of Prisons. GEO Group spent $160,000 lobbying in 2011 -– it expanded its agency targets to ICE, the Department of Homeland Security (DHS) and the Department of Justice, according to Open Secrets.

Recently, GEO Group lobbied on a DHS budget bill, in particular on the issue report related to alternatives to detention for immigrants. CCA also lobbied on the bill, focusing on three issue reports about budgeting for federal agencies overseeing detention. The filings do not say the position of the companies.

On the local level, 27 states have bodies with mandatory inspection duties, eight states have a discretionary monitoring authority, three have a statewide voluntary inspection body and five states have a local jail inspection body, according to a study (PDF) in Pace Law Review by Deitch.

Seventeen states — Arizona, Connecticut, Georgia, Kansas, Louisiana, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, Rhode Island, South Dakota, Vermont, West Virginia, Washington, Wyoming — have no oversight bodies at all.

The states with the two fastest-growing prison populations (PDF) -– West Virginia and Indiana -– both have little or no regularized oversight, and no independent monitoring agencies.

In Indiana, where the prison population increased 5.2 percent between 2008 and 2010, according to the Pew Center (PDF), an ombudsman with the state government is charged with investigating any prison-related grievances submitted voluntarily.

West Virginia’s facilities are overseen by the West Virginia Regional Jail and Correctional Authority, though its oversight is not enforced through regular inspections and the state has “no formal external prison or jail oversight mechanisms.”

This can be contrasted to what Deitch calls one of the best prison oversight systems –- Ohio, which provides external oversight of its prisons through the Correctional Institution Inspection Committee, which was created by the state Legislature for independent oversight in 1977.

Private prison exceptionalism

But with private prisons, critics say setting up effective oversight mechanisms is only part of the battle.

“There is just example after example of the failure of oversight,” said David Shapiro, a staff attorney at the National Prison Project of the American Civil Liberties Union, which has monitored prison issues since 1972.

The Corrections Corporation of America notes on its website that over 93 percent of it’s 60 facilities have passed an audit done every three years by the American Correctional Association (ACA), another private group that “offers training, support and operational standards to correctional facilities and officers.”

But critics question the reliability of the audit. A three-year accreditation (PDF) from the ACA costs $3,000 per day and $1,500 dollars for the each auditor on the team. Ken Kopczynski, with the non-profit Private Corrections Working Group, writes that this is a sign of pay-for-play.

Kopczynski also notes that “at least two CCA employees serve as ACA auditors – CCA warden Todd Thomas and company vice president Dennis Bradby,” further breaking down the ACA’s authority as an independent auditor.

Meanwhile, CCA has dealt with lawsuits around the country. Hawaii took more than 200 prisoners back from CCA prisons outside the state after they alleged they had been abused by guards; 234 inmates from Colorado sued CCA for injuries suffered from guards after a riot they didn’t participate in; and in Minnesota the company was a defendant in eight cases between 1997-2006, according to court records obtained by staff at The Minnesota Independent.

Future steps

Deitch stresses the importance of independent oversight for objective observation of a facility. Budgets cuts could make localities “less likely to be able to conduct appropriate oversight,” which puts both prisoners and staff in danger.

Shapiro, with the ACLU, also worries about the revolving door. In New Mexico, the corrections secretary Joe Williams didn’t penalize CCA and GEO Group for breaking their contractual obligations by running under-staffed prisons and then pocketing extra profits. As The New Mexico Independent reported, before becoming corrections secretary, Williams was hired by GEO Group as a warden for the Lea County Correctional Facility.

The American Bar Association (ABA) passed a resolution in 2008 calling for independent correctional oversight in every jurisdiction that has now been adopted as part of ABA policy. Deitch co-chairs the ABA’s committee on correctional oversight.

But Shapiro says no amount of oversight can ever make as opaque an institution as a private prison function transparently. The ACLU has called for the “elimination of private prisons” in its policy priorities as far back as 2001.

“The best approach to private prisons is just say no,” said Shapiro “No amount of oversight can really account for the problems with the profit motive and the problematic incentives that it creates.”

(Jon Collins contributed to reporting this story)

“The content of the briefing was serious,” said Holt, speaking about the June 23 briefing when Panetta told the House Intelligence Committee about a still-secret program begun after 9/11. “I don’t think he would’ve launched into this if it were just a trivial matter. It was serious.” (Holt would not discuss the content of the classified activities Panetta recently canceled, but reporting has linked them to an inchoate effort to bolster the CIA’s assassinations capabilities. See this Newsweek story for some of the latest.)

That said, Holt, one of the seven signatories of the congressional letter that announced the program to the public, expressed deep concerns about the fact that the CIA withheld the program from Congress, and put that secrecy on par with the substance of the program itself. “The issue here, as much as anything, is just how far can we let the intelligence [community] go in unexamined activities, dangerous activities. It’s been going on for years and years, and not just under the Bush administration.” He added that since it’s been three and a half decades since the comprehensive congressional reviews of the intelligence community known as the Church and Pike commissions, “I think the public would find some other jawdropping revelations” about what the CIA has committed with minimal oversight.

One of the objections to launching another such comprehensive congressional inquiry — or even to the outrage on the Hill over withholding this current program — is the damage that it’ll do to CIA morale. Retired CIA operative Bob Baer just told ABC, “It’s going to hurt our national security.” Holt says that not only has he not heard any such concerns from inside the agency he oversees, but that expanded oversight would be a remedy for the any operative’s feelings of besiegement. “The CIA should not want to take such risks of various covert action programs over the years without [congressional] oversight,” he said. “You just do a better job when you have to justify your actions to an independent evaluator.”

President Obama, however, is threatening to veto this year’s intelligence funding bill if it doesn’t strip out a provision to expand briefings on the most sensitive CIA activities to the full committee.

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Then there’s the argument from the left that I shouldn’t have signed the bill that got rid of the Glass-Steagall law because that enabled banks and investment banks in effect to merge their functions.

And then there’s the argument that I make, which is that I should have raised more hell about derivatives being unregulated. I believe the last one is by far the most valid, although I don’t think that the Congress would have permitted anything to be done because Alan Greenspan was against it.

Let us hope that the powers that be reflect on this as they consider what new authorities to grant the Federal Reserve as part of a new regulatory reform bill. For a very good reason — to protect the credibility of the central bank as an inflation fighter — the Fed has a great deal of statutory autonomy. That this authority should extend to virtual veto power over regulatory reform based merely on expressed preference is an unpleasant thought.

Obviously, Clinton had a different Congress with which to work. On the other hand, the previous and current Congresses’ reluctance to act on potentially divisive issues had led to an enormous expansion of activity at the Fed. Things needed to be done, and so the Fed, with the blessing of the executive branch, did them. A license to protect the value of the currency is not a license to take the lead in all things economic. Time for Congress to begin shaping up and doing its job.

The president “meant to put the kibosh on the GOP’s favorite method for spreading the wealth around,” Frank writes, noting the astronomical growth of federal spending under former President George W. Bush, paired with a decrease in the number of federal government employees who could make sure those contracts were actually doing what they were supposed to. The failure of Parsons Corp. to finish building more than 20 of the 150 medical clinics it was hired to construct in Iraq is one just one prime example Frank highlights.

But as I wrote in my story posted today, Obama will have his work cut out for him, as he confronts a Congress that’s still ready to cave to government contractors when they lobby hard enough. That’s evidently why the Senate dropped the requirement that the House version of the stimulus bill included, and which House members touted as signifying a new era in government transparency:  the online publication of all those new government contracts.

So what happened to that?  Well, government contractors didn’t like it. And they pushed Congress hard enough until they got it removed.

President Obama is absolutely right that “far too often, [government] spending is plagued by massive cost overruns, outright fraud, and the absence of oversight and accountability.”

Making the actual contracts (and sub-contracts) available for everyone to see — as Congress originally promised — would go a long way to put a stop to that.

The lead story in The New York Times Sunday serves as a sobering reminder of what can happen when government tries to spend a lot of money quickly, but doesn’t bother to keep track of where it’s going. In Iraq, no-bid contracts and nonexistent oversight led not only to brand-new trucks abandoned on roadsides and $45 cases of soda, but also to tens of thousands of dollars in cash delivered in pizza boxes and distributed as payoffs in paper sacks at drop-off spots around the Green Zone, according to a widening government investigation detailed by The Times.

The stimulus package goes a long way to keep that particular history from repeating itself.

For example, the bill creates a new board to oversee and coordinate federal spending and prevent “waste, fraud and abuse.” Any agency’s inspector general can review concerns about spending under the program, and the General Accountability Office (GAO) will conduct regular and reports on how the money is being spent. All this, plus a summary of the contracts themselves (the House bill had promised to put the entire contracts online—this was a concession to government contractors) are required to be posted online at www.recovery.gov.

The bill also requires the government to put most contracts up for competitive bidding  — a sharp departure from business-as-usual under the Bush administration — and if for some reason the contract is not competitive, the government must publish a  justification for the exception.

But it’s disappointing that Congress scaled back its pledge to post the final contracts. Government contractors’ lobbyists had pushed hard against publishing the contracts, claiming they were worried about proprietary information (which the draft bill would have allowed them to redact) and in the end, they won out. It’s not clear what a “summary” of the contracts means and how much detail they’ll include. For example, will we know if KBR is again charging $100 to wash a bag of laundry?

The nonpartisan watchdog Taxpayers for Common Sense has been cautiously optimistic about the stimulus bill, while applauding the tracking Website, the oversight panel, and the nearly $200 million to be provided for inspectors general and $25 million for the Government Accountability Office — which provide critical independent oversight.

But there are also some concerns. In addition to the unpublished contracts, some of the important accountability measures proposed by Sen. Claire McCaskill (D-Mo.), who has been a strong proponent for accountability in this bill, were not adopted. (McCaskill proposed and won important new whistleblower protections for employees of government contractors that had been left out of earlier versions of the bill.)

As Clint Hendler of Columbia Journalism Review reports, the oversight portion of the final bill (pdf) cut McCaskill’s proposed requirement for transparency in local and state contracts funded by stimulus money. McCaskill had been trying to get those contracts tracked on the recovery.gov website as well; instead, only federal funds will be tracked.

That’s too bad. But as Hendler also points out, the bill creates a floor, not a ceiling, for accountability of stimulus spending.

President Obama, meanwhile, has touted recovery.gov as a site that will “report on where the money is going in your community, how it’s being spent, how many jobs are being created so that all of you can be the eyes and ears. … The key is that we’re going to have strong oversight and strong transparency to make sure this money isn’t being wasted.”

It’s up to his administration now to make sure that happens.

Rep. Henry Waxman (D-Calif.) (WDCpix)

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Rep. Henry A. Waxman’s (D-Calif.) successful bid to become chairman of the House Energy and Commerce Committee closes the door on his brief but eventful tenure as Congress’ No. 1 watchdog over the executive branch.

After the Democrats took over Congress in 2006, Waxman, a member of the House since 1974, became chairman of the House Committee on Oversight and Government Reform. As head of the one congressional committee whose chairman can subpoena anyone, Waxman did what the committee under Republican leadership mostly hadn’t done — investigate waste, fraud and abuse in the Bush administration.

Illustration by: Matt Mahurin

The committee found plenty of corruption and incompetence in military contracting, Iraq war reconstruction, veterans’ health care, the implementation of clean-air and clean-water laws, executive branch politicization and financial deregulation, among other areas.

And its hearings made for some sensational headlines. Former CIA agent Valerie Plame testified on faulty pre-Iraq War intelligence. Little-known administration officials like Lurita Doan and Stephen Johnson became targets of national ridicule because of their on-the-job political activities. Former Federal Reserve Chairman Alan Greenspan famously admitted under oath that his economic model was flawed and led to policy mistakes. And the committee obtained a picture of imprisoned uber-lobbyist Jack Abramoff shaking hands with a smiling George W. Bush.

Waxman’s two years of news-making oversight raises a question: What difference did it make?

The answer, in part, is that the efforts of the Waxman-led oversight committee revealed critical information about some of the worst scandals and policy decisions of the Bush administration. In doing so, it helped check an administration that received little congressional scrutiny in its first six years.

Yet oversight probably came too late to significantly alter the course of the Bush presidency.

“Waxman was very effective and served as a deterrent to misbehavior,” said John Pitney, a professor of politics at Claremont McKenna College in California. “But when you’re investigating a lame-duck administration, the political impact is muted.”

Waxman, who represents Beverly Hills, established an early reputation in the House for crafting environmental, public health and consumer protection legislation. During the Bush administration, he added a second legacy — that of oversight czar. From his perch as the oversight committee’s minority leader, Waxman investigated Iraq war contractor Haliburton and faulty pre-Iraq war intelligence.

But the full committee, headed by Rep. Tom Davis (R-Va.), mostly disregarded these and other reports.

The lack of congressional oversight from 2001 to 2006 may have hurt the administration. Former officials like Secretary of Defense Donald Rumsfeld and FEMA Director Mike Brown were excoriated only after their policies led to disaster.

“I think the Republicans in Congress did the administration a disservice,” said Barbara Sinclair, a professor of political science at UCLA. “If federal agencies know they may be looked at, the administration might not have gotten into trouble on a lot of things.”

When Waxman moved up to the committee’s chair after the 2006 elections, Time magazine called him “the Scariest Guy in Washington.” The New Republic declared “The Waxman Cometh.”

And he hit the ground running, holding four hearings in one week in February 2007 and wasting no time in using his subpoena powers.

Paul Bremer, former head of Iraq’s Coalition Provisional Authority, appeared before the committee to answer questions about the lack of Iraq reconstruction. The committee also delved into the abhorrent conditions at Walter Reed Army Medical Center faced by returning Iraq soldiers.

A month later, Plame testified that the White House “carelessly and recklessly” revealed her CIA identity out of “purely political motives.” Three days after her testimony, NASA scientists accused administration officials of alteringd climate-change reports to cast doubt on global warming.

These early hearings helped establish the committee’s focus over the next two years. Iraq reconstruction was perhaps its most scrutinized subject, particularly wartime contractors like Blackwater and former Haliburton subsidiary KBR.

The politicization of science was also a subject the oversight committee frequently returned to, especially its effect on the Environmental Protection Agency’s failure to deal adequately with global warming.

But the committee wasn’t entirely fixated on administration wrongdoing. For example, in February 2008, it held hearings on the use of steriods in baseball, calling Roger Clemens to testify.

“The committee has very broad jurisdiction over all areas of government activity,” said Eleanor Hill, a partner at King & Spaulding law firm and former staff director of the Joint Intelligence Committee looking into the 9/11 terrorist attacks. “Waxman has made the most of that.”

The consensus among congressional experts is that Waxman did all he could — and it was the job of Congress and the administration to act on his oversight.

“He was the grand inquisitor,” said Ross Baker, political science professor at Rutgers University. “His job wasn’t to pass legislation but to hold hearings and do the oversight that was sadly neglected between 2001 and 2006.”

Waxman’s wide-ranging interests led him into areas that might have otherwise avoided scrutiny. Chief among these was the committee’s probe of the General Services Administration, whose head was illegally using her post to promote Republican candidates for Congress. At the end of a May 2007 hearing, Waxman called on Doan to resign. She stayed in her position for about a year.

But in other cases, Waxman was unable to get the information he sought from the administration, much less change its behavior. The most notable case involved Environmental Protection Agency head Johnson.

At a May 2008 hearing, Johnson repeatedly evaded questions from committee members about how the White House influenced the agency’s rule making on global warming and ozone standards. When Waxman asked Johnson to produce documents about his conversations with the White House, Johnson claimed executive privilege.

Atty. Gen. Michael Mukasey similarly claimed executive privilege when asked to provide a transcript of Vice President Dick Cheney’s interview with the FBI on the leak Plame’s CIA identity.

In the cases of Mukasey and Johnson, the White House appears to have succeeded in running out the clock.

Waxman wrapped up his chairmanship of the oversight committee with a flourish, though, holding five separate hearings into the causes of the financial crisis and what Congress should do about it.

The hearings exposed executive greed at Lehman Bros. and American Insurance Group, and prompted former federal regulators like Greenspan to admit they were “partially” wrong in their policy choices.

With Waxman moving over to the Energy and Commerce Committee, dramatic moments like Greenspan’s testimony may now be few and far between. His replacement as oversight chair has not been picked, and it’s not clear if Democrats will do what they said Republicans didn’t — keep a close eye on a president from their party.

“Waxman’s committee did show a virtue of a very divided government,” said Pitney, the Claremont professor. “And that’s vigorous oversight.”

It’s not as high profile as stumping for McCain, but Lieberman’s performance as oversight chairman was also a betrayal of the Democratic Party– and, more important, Congress’ role as a check on executive power.

While colleagues like Rep. Henry A. Waxman (D-CA) and Sen. Carl Levin (D-MI) spent the past two years investigating the Iraq war and torture, Lieberman never probed any Bush administration conduct related to national security.

A piece I did in February looked at how Lieberman refused a request to investigate Blackwater after its security employees opened fire on civilians in an Iraq public square. Since February, the Senate oversight committee has held hearings on important topics like FEMA’s response to Hurricane Ike and the workplace rights of government employees. But Lieberman has steadfastly refused to use his subpoena power to investigate the biggest administration scandals.

Besides foreign policy, Lieberman was also noticeably silent on the financial crisis. Maybe he would be more interested in investigating an Obama administration. But it looks like he won’t get the chance.

As Mike flagged yesterday, Waxman, the chairman of the House Committee on Oversight and Government Reform, will challenge Rep. John Dingell (D-MI) for the post of House Energy and Commerce Committee chair. Waxman called Dingell this morning. A Dingell spokesman has called the challenge “unhealthy.”

Dingell is the most senior member of the Democratic caucus,  having been in Congress since 1955.

But Waxman may be well-positioned to challenge Dingell for the chairmanship of the committee that has jurisdiction over energy, the environment and health care policy.

In his two years as House oversight chair, he’s been– perhaps along with Sen. Barbara Boxer (D-CA) — the most outspoken critic of George W. Bush’s environmental policies. While Waxman spent much of 2007 investigating the Iraq war, his focus this year has largely been on the EPA’s failure to draw up global- warming regulations.

Dingell has been criticized by Waxman and House Speaker Nancy Pelosi (D-CA) for putting the needs of the auto industry ahead of environmental concerns. Pelosi even campaigned for Dingell’s primary opponent in 2002.

A 50-member Democrat steering committee and then the full Democratic caucus will vote on whether Waxman or Dingell gets the powerful post. If Waxman loses, it’s not known whether he would return to the oversight committee. The No. 2 Democrat on the committee in terms of seniority is Rep. Edolphus Towns, (D-NY), chairman of the committee’s government management subcommittee.

The last hearings that Towns held were on the presidential transition and “Management of the Digital TV Transition: Is New York Prepared?”

Waxman’s possible departure would not be the only big change in the world of House oversight. Top committee Republican Tom Davis of Virginia retired. And No. 3 Republican Chris Shays was not reelected. Shays was the lone remaining New England Republican in the House.

It’s not just because endangered-species workers love animal analogies. It’s because the new rule gives government agencies the power, sans oversight, to decide for themselves whether their own projects violate environmental law.

The public comment period on the Bush plan ends Tuesday. Over the past few days, 120 conservation groups have sent in about 100,000 angry comments opposing the rule change, reports Reuters. They say the plan is a scheme to gut the 35-year-old law.

Bush’s Interior Dept. says the goal of the proposed regulation is to cut red tape impeding government projects.

The one thing that’s clear is that the rule would fundamentally change the way the Endangered Species Act is implemented. If conservation groups decide that the change violates the law itself, the Interior Dept. can likely expect a lawsuit if its rule is approved.

Yet, according to yesterday’s Wall Street Journal, Fuld gave investors a confident assessment about Lehman’s financial health during a Sept. 10 conference call — five days before the investment bank sought Chapter 11 bankruptcy protection. That led Rep. Paul Sarbanes (D-Md.) to remark at yesterday’s oversight hearing that Fuld seems to have been either naive or deceptive.

Lehman documents handed over to the committee suggest a little of both.

One undated internal memorandum, written some time in the past six months, amounts to an eight-page, bullet-pointed pep talk describing how Lehman can regain its discipline and focus.

Titled “What Happened & Why,” the memo asks such questions as “Why did we allow ourselves to be exposed?” and is the “business model broken?”

It does provide answers similar to what Fuld said publicly before Lehman filed for bankruptcy protection: that the business model was fine and that crises are a “feature of financial markets.”

Through “intellectual capital” and “drive,” the memo said, Lehman will emerge better than ever through this “Darwinian process.”

The Darwinian process, of course, devoured Lehman. But judging from this memo, it looks as if Fuld was able to convince himself that the investment bank could recover. And, as he testified yesterday, he never sold his company stock.

The consequence of his misplaced confidence may have been the next phase of the now emerging global financial crisis.