On March 28, 2011, a group of leading transparency advocates passed through the security checkpoints along the perimeter of the White House compound to present Barack Obama with an award for his efforts to open up government. The president who took office promising “an unprecedented level of openness in government” was getting his due for introducing sunlight into the murky workings of state. Supposedly.
Some of the participating activists were thrilled. “In the 28 years that I’ve advocated for open government...this is the first time I’ve heard of such a meeting,” wrote Gary Bass, director of OMB Watch, on the transparency group’s website. “Rather than it being a photo op,” wrote Danielle Brian, executive director of the Project on Government Oversight, “it was everything we hoped.”
They were right about one thing: It wasn’t a photo op. The meeting was closed to the media, off limits even to a promised pool photographer and reporter. The ceremony did not appear on Obama’s public schedule, and the White House did not release a transcript of the conversation. “Shh!” read the headline in Politico. “Obama Gets Anti-Secrecy Award.”
The activists at the meeting, including Tom Blanton of the National Security Archive, Patrice McDermott of OpenTheGovernment.org, and Lucy Dalglish of the Reporters Committee for Freedom of the Press, stood by the award. But others used the occasion to assess the gap between candidate Obama’s transparency pledges (including one he signed with the Reason Foundation, the nonprofit organization that publishes this magazine) and President Obama’s transparency record. Ellen Miller of the Sunlight Foundation, Washington’s premier open-government group, told The Hill the award was “foolishly conceived” given Obama’s “tremendously disappointing” actions in office. Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told Politico, “I don’t feel moved today to say ‘Thank you, Mr. President.’ ”
Three months later, what started out as a drip of disappointment had turned into a flood of discontent. At a secretive meeting organized by the Aspen Institute, Dalglish and others met privately with Obama administration officials to discuss the case of New York Times national security reporter James Risen, who was subpoenaed for reporting classified information he allegedly obtained from CIA officer Jeffrey A. Sterling about the Bush administration’s efforts to sabotage Iran’s nuclear program. “The Risen subpoena is one of the last you’ll see,” the Obama official told Dalglish, according to an interview she later gave the Times. Good news for investigative journalists? Think again. “We don’t need to ask who you’re talking to,” the official reportedly said. “We know.”
Dalglish was no longer so sanguine about the administration’s commitment to sunlight. “For God’s sake,” she told the Times. “Get off of e-mail. Get off of your cellphone. Watch your credit cards. Watch your plane tickets. These guys in the NSA know everything.”
‘Disclosure Would Threaten Security’
This was not the change transparency advocates thought they were getting. On January 26, 2009, less than a week after his inauguration, Obama sent a promising-sounding memo to the heads of every federal agency, announcing that the Freedom of Information Act (FOIA)—which had been given short shrift by George W. Bush, Dick Cheney, and Bush’s attorneys general during the previous eight years—would once again be treated with respect. “A democracy requires accountability, and accountability requires transparency,” the memo began. “In our democracy, the Freedom of Information Act…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 memo went on to say that FOIA, which is the primary legal means by which citizens can petition the federal government to cough up information, “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.”
For a procedural memorandum, the document was magnificent both in prose and scope—perhaps too magnificent. Less than two months later, Attorney General Eric Holder felt the need to distribute a follow-up memo, this one written in plain English. The gist of the president’s new transparency policy, Holder said, was that federal agencies should “not withhold information simply because [they] may do so legally.” Still, measured against the FOIA memo that then-President George W. Bush sent out in 2005, reminding bureaucrats that Congress had empowered them to “protect information that must be held in confidence for the Government to function effectively or for other purposes,” the Obama and Holder memos seemed to herald a new era.
“I’m pretty damn pleased that the issue of transparency in government is such a high priority for the new administration,” the Sunlight Foundation’s Ellen Miller told The Washington Post in March 2009. The new FOIA policy, she said, marked “a refreshing change from the disastrous standard set by former Attorney General John Ashcroft in 2001.” Ashcroft’s post-9/11 memo had read, in part: “When you carefully consider FOIA requests and decide to withdraw records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”
Hopes soared further in April 2009, when the White House agreed to comply with an appeals court decision ordering the Pentagon to release photos of American-held prisoners from Afghanistan and Iraq. The fate of the photos had been in limbo since the American Civil Liberties Union sued the Bush administration over the issue in 2006.
But just three weeks later, Obama changed his mind. “The most direct consequence of releasing [the photos] would be to further inflame anti-American opinion, and to put our troops in greater danger,” he explained, echoing the previous administration’s arguments for suppressing notorious photos from the U.S.-run prison in Abu Ghraib, Iraq. In October 2009, the president made it official, signing hastily written, bipartisan legislation prohibiting the release of the images.
That moment marked the beginning of a trend. While the Obama administration invested big money in redesigning old government websites and launching flashy new ones such as recovery.gov and federalregister.gov, it continued to behave like its predecessor on transparency issues of consequence. In the first year of Obama’s presidency, the Federal Reserve and the U.S. Treasury were sued by Bloomberg News, Fox News, and The New York Times for withholding documents related to the Wall Street bailout. The CIA and the National Security Agency were sued by the Electronic Freedom Foundation for refusing to release documents detailing internal lawbreaking. Agencies across the executive branch recorded 466,872 FOIA denials, an increase of 66 percent over Bush’s last year in office.
One agency’s FOIA obstructionism was severe enough to spark a congressional investigation. The House Oversight Committee, led by Rep. Darrell Issa (R-Calif.), spent several months looking into claims that the Department of Homeland Security (DHS) had demoted a FOIA researcher for blowing the whistle on improper compliance she had witnessed throughout 2009. That whistleblower, Catherine Papoi, testified before the Oversight Committee in early 2011 that she had been instructed to alter requested records before releasing them and to withhold requested information that was already public.