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In at least two documented incidents, Papoi’s instructions came not from her supervisor in the DHS FOIA office, which is structured to be apolitical, but from a former volunteer for the campaign organization Obama for America named Willard Carte, who had been hired as a “confidential assistant” to Secretary of Homeland Security Janet Napolitano. DHS Inspector General Charles K. Edwards, who conducted an investigation into these claims concurrent with the Oversight Committee’s, concluded that Napolitano’s role marked an “unprecedented involvement in the FOIA process.”
You could claim, as some Democrats did, that the incidents Issa’s team uncovered were isolated. You could also argue, as Obama defenders have, that the culture of the federal bureaucracy cannot change overnight, even in response to an executive memo.
But other decisions from early in Obama’s presidency show the ways in which this administration has actively worked to preserve Bush-era secrecy. The Risen subpoena, for instance, was entirely the Obama administration’s doing. Risen published the classified information he obtained from Sterling in 2006; the Justice Department subpoenaed him in May 2011. In reporting that Risen had been asked to testify against Sterling, the Times also noted that “in President Obama’s 26 months in office, civilian and military prosecutors have charged five people in cases involving leaking information, more than all previous presidents combined.”
And what about FOIA policy, the battles for which are fought largely in the trenches of agencies, and not the White House? Even on that front, the Obama administration has chosen opacity over transparency time and time again.
Milner v. Department of the Navy dates back to 2003, when Glen Milner, a resident of Puget Sound, Washington, filed a FOIA request for the explosives safety quantity distance (ESQD) of the munitions stored at the naval magazine on nearby Indian Island. The ESQD indicates how a series of munitions explosions would affect the surrounding area, including Milner’s own neighborhood. The Navy had shared this information with first responders in Puget Sound but refused to release documents to Milner on the grounds that “disclosure would threaten the security of the base and surrounding community.” Instead of using one of FOIA’s many national security exemptions, the Navy cited Exemption 2, which covers information “related solely to the internal personnel rules and practices of an agency.”
Over time, broader and broader interpretations of Exemption 2 have turned it into a rejection of last resort: If an agency can’t deny a request on legitimate grounds, it will often cite the ambiguously worded exemption to avoid releasing information. An amicus brief in the Milner case signed by more than a dozen news agencies warned that the exemption “has been distorted to such a disturbing extent that agencies consistently cite Exemption 2 to withhold any document that could potentially fall into the ‘wrong hands.’ ” The use of this tactic was so out of control by the time Obama took office that Holder’s Department of Justice (DOJ) issued guidelines to limit it.
Yet when Milner’s case went before the Supreme Court in December 2010, Obama administration lawyers fought to preserve to the broadest possible reading of Exemption 2. Assistant Solicitor General Anthony Yang asked the Court not to “disrupt 30 years of FOIA practice by rejecting an interpretation of Exemption 2 that has prevailed and has provided a workable standard for agencies.”
Supreme Court Chief Justice John Roberts would not have it. “You are telling us how sensitive these [documents] are, and therefore it would harm the national interest if they have to be disclosed,” Roberts said to Yang during oral argument. “If that’s true, you can classify them…instead of coming to us and saying you should torture the language in FOIA.” In March 2011, the Court ruled in favor of Milner, 8 to 1.
That same month, and just one week before Obama received his transparency award, the Justice Department released its proposal for a FOIA rule change. Current FOIA policy allows agencies to respond in cases involving certain kinds of sensitive information by claiming that the existence of requested records could be neither confirmed nor denied but that if they did exist they would be covered by such-and-such exemption. The new policy submitted by Holder’s Justice Department would allow federal agencies to “respond to the request as if the excluded records did not exist.” The DOJ withdrew the proposal a year later in response to public outrage.
‘Co-opted by the National Security Community’
Under Obama, transparency groups have received unprecedented rhetorical support from the White House. As a result, they are understandably reluctant to open fire on the president and have him abandon their cause altogether. As the Project on Government Oversight’s Danielle Brian wrote on her organization’s blog just after Obama’s transparency award, “If we take for granted a sitting President who has used his bully pulpit to emphasize the need to change the way we think about access to government information, our cause is likely to be forgotten among the many other presidential priorities. And some progress has undeniably been made in the past two years.”
Other organizations are less cagey. On June 14, 2011, a group led by anti-war activist David Swanson published an open letter in the London Guardian calling for the award to be rescinded. “If the ceremony had been open to the press,” the letter said, “it is likely that reporters would have questioned the organisations’ proffered justification for the award, in contrast to the current reality.” Signatories included former American intelligence analysts, former high-ranking DOJ officials, and retired military officers as well as dozens of watchdog groups and international nongovernmental organizations.
Citing data provided by the Information Security Oversight Office (ISOO), an arm of the National Archives and Records Administration that tracks the cost and scope of classification, Swanson et al. reported that “the cost of classification for 2010 has reached over $10.17 billion. That’s a 15 percent jump from the previous year, and the first time ever that secrecy costs have surpassed $10 billion. Last month, ISOO reported that the number of original classification decisions generated by the Obama administration in 2010 was 224,734—a 22.6 percent jump from the previous year.”
In 2011 the reported cost of classifying government information jumped again, to $11.36 billion, though the true cost is higher, since the ISOO’s figures do not include spending by the CIA and the NSA. These cost hikes suggest that Obama reneged on yet another of his transparency promises, made on December 29, 2009. Executive Order 13526 held that “information shall not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security.”
The Swanson group also cited Obama’s invocation of the state secrets privilege to block lawsuits over the NSA’s warrantless wiretapping program; his April 2011 statement that suspected Wikileaks accomplice Bradley Manning “broke the law” (made long before Manning saw the inside of a courtroom); the Defense Department’s confiscation and destruction of Operation Dark Heart, a book by U.S. Army intelligence officer Lt. Col Anthony Shaffer that shed light on American failures in Afghanistan, on the grounds that it contained “sensitive” information; subpoenas and indictments of journalists such as Risen, and FBI translator Shamai Leibowitz, who shared transcripts from the FBI’s wiretaps of the Israeli Embassy with blogger Richard Silverstein; and the lengths to which administration officials have gone to keep the names of lobbyists off the White House visitor logs. (Administration officials meet with them in coffee houses, and correspond with them from personal email accounts).