Days after President Barack Obama’s inauguration, he pledged to have his administration create an “unprecedented level of openness in government.” Then-chief of staff, Jack Lew, later contended the administration was the “most transparent administration ever.” At a rally in 2010, Obama told the public, “We have put in place the toughest ethics laws and toughest transparency rules of any administration in history.” But this slogan suggesting the Obama administration is the “most transparent” ever has been nothing but a marketing ploy, the product of an administration that Advertising Age recognized as “marketer of the year” in 2008.
The Associated Press conducted its annual review of government data related to the Freedom of Information Act. It found that the “government’s efforts to be more open about its activities last year were their worst since President Barack Obama took office.”
While the AP could not tell if the public was simply requesting more sensitive information than the previous year, the administration claimed a record number of “national security” exemptions. A record number of times the administration also withheld information and cited a “deliberative process” exemption, claiming it dealt with “decision-making behind the scenes” so could not be released.
“[T]he government more than ever censored materials it turned over or fully denied access to them, in 244,675 cases or 36 percent of all requests. On 196,034 other occasions, the government said it couldn’t find records, a person refused to pay for copies or the government determined the request to be unreasonable or improper,” according to the AP.
Plus, “Journalists and others who need information quickly to report breaking news fared worse than ever last year.”
…Blocking news organizations from urgently obtaining records about a government scandal or crisis — such as the NSA’s phone-records collection, Boston bombings, trouble with its health care website, the deadly shootings at the Washington Navy Yard or the attack on the diplomatic mission in Benghazi — can delay uncovering significant developments until after decisions are made and the public’s interest has waned…
A request AP submitted for information on “contracts with public relations companies to promote Obama’s health care law” has been pending for over an year. The AP has also been waiting for over ten months to receive emails “between the IRS and outside Democratic super PACs about Tea Party groups.”
Agencies are taking longer to respond to requests too. The AP noted, “The Pentagon reported at least two requests still pending after 10 years and the CIA was still working on at least four requests from more than eight years ago.” (But, the White House, for some reason, claimed it was responding “more quickly” to FOIA requests. AP mentioned the White House did not elaborate on how it arrived at this conclusion.)
Some of the more stunning episodes in the administration’s efforts to be the “most transparent”—which in effect is more secretive—administration in history include conduct in the midst of disclosures from former National Security Agency contractor Edward Snowden.
Organizations like the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) had been fighting the administration for the release of information that would detail secret legal interpretations of a section of the PATRIOT Act. Once Snowden began to reveal details related to what the administration had kept secret, Director for National Intelligence James Clapper had the agency put up an “IC on the Record” Tumblr where documents could be posted. The administration disingenuously made it seem like it was voluntarily posting the documents, however, after Snowden’s disclosures began, a court ordered the administration to begin declassifying documents that EFF had requested.
The Justice Department fought the release of a Foreign Intelligence Surveillance Court opinion, which underpinned the PRISM program that Snowden revealed.
This year, in January, a case brought by EFF ended with a federal appeals court in Washington, DC, ruling that the Justice Department could keep Office of Legal Counsel (OLC) opinions secret. EFF had sought the release of an opinion because it “purportedly allows the FBI to access the private call records of phone company subscribers without providing any legal process.” The New York Times reacted, “The office’s advice often serves as the final word on what the executive branch may legally do, and those who follow that advice are virtually assured that they will not face prosecution.”
Secret legal opinions have often been drafted to authorize illegal activity, such as torture, warrantless wiretapping and the killing of American citizens with drones. The Obama administration has succeeded in keeping legal opinions secret—essentially expanding a growing body of secret law (that was much growing even more vast before Snowden blew the whistle on top secret surveillance by the NSA).
However, the department did lose a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW). A federal appeals court ruled the department had tried to pervert freedom of information law with its preferred legal interpretation that government agencies were only required to communicate a “determination” on whether they would comply within 20 working days.
By law, as the court ruling described, “A FOIA requester must exhaust administrative appeal remedies before seeking judicial redress. But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement.” That means the requester can appeal or sue the agency for the release of documents.
The administration effectively would have created a Catch-22 that further limited citizens’ ability to challenge government when agencies refused to release information.
The AP reported in June of last year, “The nation’s top special operations commander ordered military files about the Navy SEAL raid on Osama bin Laden’s hideout to be purged from Defense Department computers and sent to the CIA, where they could be more easily shielded from ever being made public.” This clearly appears to be a circumvention of freedom of information law.
The administration also refused requests for photos of bin Laden possibly because, according to a member of SEAL Team Six who was part of the raid, “Operator after operator took turns dumping magazines-worth of ammunition into Bin Laden’s body,” and, “When all was said and done, UBL had over a hundred bullets in him, by the most conservative estimate.”
The release of White House visitor logs was fought by the Obama administration, and the administration won in an appeals court last August.
According to the National Security Archive, “Nearly half (50 out of 101) of all federal agencies have still not updated their Freedom of Information Act regulations to comply with Congress’s 2007 FOIA amendments, and even more agencies (55 of 101) have FOIA regulations that predate and ignore President Obama’s and Attorney General Holder’s 2009 guidance for a ‘presumption of disclosure.’”
The administration seems to expend resources and energy trying to develop strategies to block the release of information to the public more than it spends working to fulfill its pledge to be transparent.
It would not release GPS location tracking memos that would have showed how the Justice Department interpreted the law in the aftermath of a major Supreme Court decision. (A court ruled in favor of this secrecy last week.)
For years now, the ACLU has been fighting the government in court as it maintains it should be able to conceal information on the “targeted killings” of three US citizens: Anwar al-Awlaki, Abdulrahman al-Awlaki, his 16-year-old son, and Samir Khan.
The ACLU also has two other FOIA lawsuits the Obama administration has fought—one for the “legal and factual basis for its use of predator drones” and a lawsuit for information on a December 2009 missile strike the administration launched on al Majalah in Yemen, which killed dozens of civilians including 21 children.
As ProPublica outlined in November, even though Obama made some kind of a promise that his administration would share more information on drones, the groups considered to be “associated forces” of al Qaeda remain classified. Whether any compensation has been paid to drone victims is unknown. Sometimes it is hard to figure out if strikes are, in fact, US drone strikes because officials will not confirm them.
The administration has largely avoided confronting government secrecy, especially the culture in Washington, which reinforces such secrecy. That has made leaks of government information even more critical to enhancing the public’s understanding (but if Obama has his way, this flow of information will be stopped entirely too).
Gannett News noted recently, “A study by researchers at Penn State University found that government denials of the public’s requests for information increased during the first three years of the Obama administration compared to the last three years of the George W. Bush administration.”
Each year the Obama administration has become progressively worse at openness in government and yet it still promotes this illusion that it has this sterling record when it comes to transparency.
In the CIA’s fight against the Senate’s torture report, the administration has sought to invoke executive privilege to an alarming extent in order to cover up abuses.
Not only is the Obama administration not the “most transparent administration ever,” it has become the inverse of the “most transparent administration ever.” It is now one of the most secretive administrations ever, outpacing Bush in his commitment to keep government actions concealed from the public.