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.
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).
Why has the president turned away from transparency? Theories abound. One transparency advocate I spoke to in January blamed security hawks in Congress, Democrats and Republicans who “won’t let” Obama open up government. When I asked him why he thought Obama didn’t just buck the objections and do what he promised, the transparency advocate said it would be “politically risky.”
Thomas Drake has another theory. A former NSA official, Drake became a poster boy for the transparency movement in 2005 after exposing the NSA’s Trailblazer project, an overpriced data collection program that he felt was tantamount to domestic spying. In 2010 a grand jury indicted Drake under the odious Espionage Act of 1917 for giving information about Trailblazer to a reporter at The Baltimore Sun. The Obama administration’s prosecutors did everything they could to keep the Drake case quiet. Invoking the Classified Information Procedures Act, they asked U.S. District Judge Richard D. Bennett to prohibit Drake’s legal team from mentioning overclassification or whistleblowing, tried to limit cross-examination, and demanded that jurors be forbidden from reading the Sun’s Trailblazer stories.
In June 2011, after Drake said he would not “plea bargain with the truth,” federal prosecutors threw out all the charges save one: a single misdemeanor count of “exceeding his authorized access to government computers.” Drake took the deal and was sentenced to community service.
In the fall of 2011, I heard Drake speak after a screening of All the President’s Men at the American Film Institute in Silver Spring, Maryland. “If I hadn’t said something about the wrongdoing that I became aware of, then I would’ve been condoning the very activity I discovered and found out about,” Drake told the audience. “My responsibility as a senior executive in the national security community, and assigned to the National Security Agency, was to honor the oath, which is to support and defend the Constitution and make sure I faithfully executed the law of the land. That included all statutes; that included all regulations.”
After the event, I caught Drake in the hall-way to ask him about Obama’s failure to uphold his transparency promises. “Obama’s been co-opted by the national security community,” Drake said. “People hoped he would take them on, but he became enamored by all the secret stuff. He’s getting all these cool briefings. It goes to his head. I can send drones anywhere! It’s very powerful stuff. It becomes pathological.”
Tall, gaunt, and worried-looking, Drake added that “if this had happened in too many other countries, I would’ve been disappeared.” As it stands, he is doing his community service at the Library of Congress, perhaps the only silver lining in Obama’s war on transparency.
‘You’ll Notice That It Is an Empty Chair’
While many of Obama’s transparency failures concern national security, not all of them do. In October 2011 a panel of science journalists convened at the National Press Club in Washington, D.C., to discuss the transparency record of federal agencies. After introducing six science journalists, panel moderator Seth Borenstein, a writer for the Associated Press, introduced the representative from the Obama administration. “You’ll notice that it is an empty chair,” Borenstein said.
That last seat had been offered to three different federal agencies: the Department of Health and Human Services, the Environmental Protection Agency, and the Office of Science and Technology Policy. Each agency had declined, said Curtis Brainard, the science editor at the Columbia Journalism Review, “despite my best efforts, which came out to dozens of emails and phone calls.” After two months of “begging and pleading” with agency officials, Brainard made “a last-ditch effort to reach out to the White House itself, explaining the fact that their agencies and departments have declined this invitation, and why I believe this event is so important to addressing some of these issues in media relations.” The result of Brainard’s efforts could serve as an epitaph for Obama’s transparency record: “I never heard back from them.”