Transparency and President Obama

Dear Friends,

The first topic addressed in the American Civil Liberties Union report entitled "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration" (here) is transparency. 

As the report points out, President Obama started off his term in office with great pronouncements about the new transparency that he would bring to government.  Almost immediately upon taking office he issued a Memorandum on Transparency and Open Government (here).  The memorandum while long on platitudes was devoid of any substance.  Nevertheless, it did set forth the ideal -

My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

That memorandum was followed by a Memorandum on the Freedom of Information Act (here).   This memorandum was intended to set the tone for the Obama Administration's responses to information requests under the Freedom of Information Act.  The beginning of the memorandum was an incredible breath of fresh air after the Bush Administration policy of do not release unless you are forced to.

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.  The presumption of disclosure should be applied to all decisions involving FOIA.

The ACLU report points out that President Obama seemed initially to embrace the wonderful sentiments of these memoranda when he did things like release the torture memos and the report on the CIA interrogations.  Unfortunately, as the report highlights, "The administration’s commitment to transparency,
however, has been inconsistent, and it has waned over time."

An audit of the Freedom of Information Act results under President Obama by the National Security Archive released in March 2010 (here) found the following:

• Ancient requests--as old as 18 years--still persist in the FOIA system.

• A minority of agencies have responded to the Obama and Holder Memos with concrete changes in their FOIA practices.

• Only four out of 28 agencies reporting--including Holder's own Justice Department--show releases up and denials down under the FOIA.

The ACLU report highlights a number of cases where the Obama Administration has chosen secrecy over transparency.  As you may recall, it reversed its decision to release the photographs of the abuse at Abu Ghraib.  In addition, the ACLU report notes that the Obama Administration supported legislation that

invested the Secretary of Defense with sweeping authority to withhold any visual images depicting the government’s “treatment of individuals engaged, captured, or detained” by U.S. forces—no matter how egregious the conduct depicted or how compelling the public’s interest in disclosure. As the ACLU noted at the time, the legislation essentially gave the greatest protection from disclosure to records depicting the worst forms of government misconduct.

The ACLU report then lists some of the other examples:

it has fought to keep secret a directive in which President Bush authorized the CIA to establish secret prisons overseas; the Combatant Status Review Transcripts in which former CIA prisoners describe the abuse they suffered in the CIA’s secret prisons; records relating to the CIA’s destruction of videotapes that depicted some prisoners being waterboarded; and cables containing communications between the CIA’s secret prisons and officials at CIA headquarters. It has argued that the CIA’s authority to withhold information concerning “intelligence sources and methods” extends even to methods that are illegal. The administration has also fought to withhold information about prisoners held at Bagram Air Base in Afghanistan. Indeed, the Obama administration has released less information about prisoners held at Bagram Air Base than the Bush administration released about prisoners held at Guantánamo.

The ACLU report section on transparency also highlights the difference between candidate Obama's position with respect to whistleblowers and President Obama's actions.  In June, 2010 The New York Times published an article by Scott Shane (here) that contained the following paragraph:

The indictment of Mr. Drake was the latest evidence that the Obama administration is proving more aggressive than the Bush administration in seeking to punish unauthorized leaks. 

The reference to Mr. Drake is to Thomas Drake whose leak led to the discovery of the warrantless wiretapping program initiated by President George W. Bush.  The ACLU report also highlights Bradley Manning who allegedly leaked the video of a US helicopter killing two Reuters news staff and several other civilians in Iraq. I discussed the case of James Risen in a post in May here.  The Obama Administration has re-issued subpoenas to try to force the disclosure of Mr. Risen's sources for a book about the CIA.  Even the Bush Administration let the subpoenas it had issued lapse rather than pursue Mr. Risen.

The conclusion is clear.  President Obama's actions do not live up to his words or certainly the expectations that I had for candidate Obama when I supported him.

Thanks for reading and please comment,
The Unabashed Liberal