In the year since President Obama took office, he has made significant progress on transparency and access issues. Still, there have been plenty of missed opportunities and much work still to be done.
Background: Since it was formally recognized in a controversial 1953 Supreme Court case, the state secrets privilege allows the executive branch to exclude, usually without judicial review, pieces of evidence that, they assert, might jeopardize national security from litigation. Not only did the Bush administration make greater use of the privilege than its predecessors, his administration also asserted that it could use the privilege to exempt entire categories of government action out of the bounds of litigation.
What Obama’s done: During his presidential campaign, Obama expressed reservations with the Bush administration’s application of the privilege. When asked about the issue at a spring press conference, Obama said that “the state secret doctrine should be modified.” In the fall, his Justice Department issued a new internal policy that would require greater internal review before making a state secrets claim. The guidelines, which are not judicially enforceable nor binding on any future administration, fell far short of what civil libertarians and transparency advocates had hoped for. Meanwhile, the Obama administration has held the Bush line on state secrets in a series of cases dealing with the previous administration’s interrogation and intelligence practices. The administration has declined to endorse one popular fix, the State Secrets Protection Act. Vice President Joe Biden and Secretary of State Hillary Clinton were co-sponsors of the bill while they were senators.
Past coverage from CJR:
Policies and Procedures Governing Invocation of the State Secrets Privilege,” Attorney General Eric Holder. (pdf)
Background on the State Secrets Privilege, American Civil Liberties Union.
The State Secrets Privilege: Selected Case Files,” Federation of American Scientists.
The Freedom of Information Act (FOIA)
Background: Enacted with President Johnson’s signature in 1966, the Act remains a keystone of the open government movement. Shortly after coming to office, Bush’s first Attorney General, John Ashcroft, issued an order suggesting that federal employees, faced with a records request, should broadly apply portions of the law allowing the government to withhold certain categories of records, overturning a more access-friendly Clinton standard. In the latter part of the Bush administration, data suggested that many agencies took longer to respond to FOIA requests than they did at the beginning of the decade.
Obama’s actions: On the first full day of his administration, Obama signed a presidential directive ordering the attorney general to develop new guidance to replace the Bush-era standards. Eric Holder issued new guidance essentially restoring the Clinton standard in March. The administration’s Open Government Directive calls for greater monitoring of agency FOIA backlogs, and requires the worst offenders to craft plans to reduce them by 10 percent annually. The record has been more mixed in FOIA litigation: the Obama administration reversed its initial decision to release photos depicting detainee abuse in Afghanistan and Iraq, pursuant to an ACLU FOIA lawsuit, and began laying the groundwork for a long shot appeal that would, at a minimum, delay release. Meanwhile, Congress passed a law, with administration support, exempting the photos from disclosure; the administration promptly made use of it, effectively stemming their release.
Past coverage from CJR:
Presidential Memorandum, Freedom of Information Act, The White House.
Guidance on the Freedom of Information Act, March 19, Justice Department. (pdf)
Open Government Directive
Background: While local and state governments have had more success, the federal government moves slowly, and has so far done little to use the Internet to change the way our elected officials and civil servants interact and communicate with the public.