President Barack Obama took the oath of office on Jan. 20, 2009 and the next day renewed his promise of a new era of open government and public accountability. But despite several new executive orders and policy changes, the administration’s continuation of some of Washington’s traditional secretive practices has already drawn the criticism of open-government advocates.
Freedom of Information Act Memo
Obama released a memo on January 21 announcing changes to the way the executive branch would handle Freedom of Information Act (FOIA), 5 U.S.C. 552, requests going forward, saying that under his administration there would be a “presumption of disclosure” for all FOIA requests.
“As Justice Louis Brandeis wrote, ‘sunlight is said to be the best of disinfectants,’” Obama’s memo said in its opening paragraph. “In our democracy, the [FOIA], which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government.
“In the face of doubt, openness prevails,” the memo said. “In responding to requests under the FOIA, executive branch agencies … should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.”
The memo, published in the Federal Register at 74 Fed. Reg. 4683, was addressed to the heads of all executive departments and agencies. It represents a distinct departure from the Oct. 12, 2001 memo from then-Attorney General John Ashcroft that called for withholding any requested documents if there was a “sound legal basis” for doing so.
The Ashcroft memo told the department and agency heads that “you can be assured that the Department of Justice will defend your [FOIA] decisions unless they lack a sound legal basis.” (See “Surveys on Access to Information Released” in the Summer 2003 Silha Bulletin for more on the Ashcroft memo and its affect on government access.)
In addition to acting on FOIA requests, the Obama memo said that individual departments should take “affirmative steps to make information public.” Instead of waiting for requests, the memo instructed agencies to “use modern technology to inform citizens about what is known and done by their Government.”
“For a long time now, there’s been too much secrecy in this city,” Obama said at a January 21 event welcoming senior staff and cabinet secretaries to the White House. “The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.” The full transcript of the speech is available at http://spj.org/blog/blogs/foifyi/archive/2009/01/21/21864.aspx.
“The fact that Mr. Obama took these actions on his very first day in office signals a new era in government accountability,” said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW) in a January 21 Associated Press (AP) story. “He is turning the page and moving away from the secrecy of the last administration.”
CREW is a nonprofit advocacy group concerned with political accountability. It filed a lawsuit in May 2007 seeking White House e-mails under FOIA. See “Courts Continue to Deal with Bush Records Policies, E-mails” on page 12 of this issue and “Roundup: Government E-mails as Public Records” in the Fall 2008 Silha Bulletin.
The Society of Professional Journalists (SPJ) also praised the FOIA memo in a January 22 press release. “It’s a good day for access to information,” said Dave Cuillier, SPJ Freedom of Information Committee chairman in the statement. “The details are yet to be worked out, but now federal employees must err on the side of openness, and I’m hopeful that will result in shorter waits, fewer public records denials and better government accountability.”
A story in the January 21 Columbia Journalism Review said that it was significant that the policy was expressed as an executive memo as opposed to a memo from a cabinet official. “An executive order is much stronger medicine. It is a directive from the president to government to do the following unless you’re otherwise prohibited by law,” said David Vladeck, a Georgetown University law professor, in the Review story.
Rolling back Obama’s new executive directive on FOIA would be difficult, if only because would bring far greater attention. “This is something he wants the next president to have to rescind,” Vladeck said. “He takes this very personally, and he wants his name on this, not [Attorney General] Eric Holder’s.”
Transparency and Open Government Memo
In addition to the FOIA memo, President Obama released a “Transparency and Open Government” memo on January 21, in which he stated he was “committed to creating an unprecedented level of openness in Government.”
The memo, published in the Federal Register at 74 Fed. Reg. 4685, lists a series of characteristics the Obama administration said it is seeking to implement, specifically that government should be transparent, participatory, and collaborative.
The memo also directs the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget and the Administrator of General Services, to “coordinate the development … within 120 days, of recommendations for an Open Government Directive … that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum.”
One of the hurdles facing the implementation of this memo is that the office of Chief Technology Officer has not yet been created. The Web site Secrecy News observed in a February 2 post that “there are fundamental questions about the nature, role, authority, budget, and status of such a position that remain to be answered.”
Access to Presidential Documents
Obama also issued an executive order on January 21 that requires the incumbent president to consult with the attorney general and the White House general counsel whenever a request is made for information that a current or former president wishes to withhold.
“Information will not be withheld just because I say so,” Obama said at the January 21 welcoming event at the White House. “It will be withheld because a separate authority believes my request is well- grounded in the Constitution.”
Obama’s new order, Executive Order 13489, 74 Fed. Reg. 4669, revoked President George W. Bush’s Executive Order 13233, 66 Fed. Reg. 56025, which had been in place since November 2001. The order activates the new administration’s policy regarding the Presidential Records Act of 1978 (PRA), 44 U.S.C. 2201 et seq. The PRA makes presidential records the property of the public. Under 2204 of the act, former presidents may restrict access to some of their records, subject to executive order, for up to 12 years after leaving office, at which point the records will become public and subject to the FOIA.
The old order, instituted by the Bush administration after the Sept. 11, 2001 terrorist attacks, allowed former presidents to assert executive privilege to keep some of their White House papers secret indefinitely. It allowed any past or present president to assert a privilege for any information pertaining to “military, diplomatic, or national security secrets; communications of the President or his advisors; legal advice or legal work; and the deliberative processes of the President or his advisors.” Parts of the Bush order were ruled invalid by a federal judge in American Historical Ass’n v. National Archives and Records Admin., 516 F. Supp. 2d 90 (D.D.C. 2007), which held that a portion of the order was “contrary to the terms of the PRA and lacks a valid constitutional basis.”
No privilege may be exerted under the new order unless there is a “substantial question of executive privilege,” defined in the statute as information that “might impair national security, law enforcement, or the deliberative processes of the executive branch.”
In addition, under the new order, former presidents may ask to have certain documents kept secret, but they no longer may compel the National Archives to do so. Any request to keep the documents of a former president closed requires the consultation of “the Archivist, the Attorney General, the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the presidential records notwithstanding the former President’s claim of privilege.”
Gates Lifts Ban on Photographing Caskets
Obama’s Secretary of Defense, Robert Gates, the lone holdover from Bush’s presidential cabinet, announced on Feb. 26, 2009 that the Department of Defense was rescinding a long-standing prohibition against photographing caskets of returning war dead at Delaware’s Dover Air Force Base after Obama asked him to review the policy.
“After receiving input from a number of sources, including all of the military services and organizations representing military families, I have decided that the decision regarding media coverage of the dignified transfer process at Dover should be made by those most directly affected, on an individual basis by the families of the fallen,” Gates said at a news briefing from the Pentagon. “We ought not presume to make that decision in their place.”
The new order calls for the creation of a “working group” to create a plan that allows families to decide whether news organizations may photograph the arrivals. The department’s previous policy, in place since 1991 when it was implemented under President George H.W. Bush, was a blanket ban on all photographs of the caskets bearing the remains of military personnel.
Gates, who expressed his personal support for the new plan, was questioned at the briefing why the change was not initiated earlier. “I asked for a review of it a little over a year ago, and got a different answer than I got a few days ago,” Gates responded. “And I was much happier with the answer I got this year.”
Some military family groups opposed the new decision. “I’m very disappointed,” said John Ellsworth in a February 26 New York Times story. Ellsworth’s son was killed in Iraq in 2004. He is currently the president of Military Families United. “There was nothing wrong with the way things were. I believe that the administration basically caved to the special-interest groups, the antiwar groups, that are going to politicize our fallen,” Ellsworth said. “What is the need to show these caskets, other than to try to inflame controversy?”
Richard Lacayo, the art and architecture critic at Time magazine, praised the decision in a February 27 story. “Pictures of the sacrifices necessary for a justifiable war won’t make people turn their backs on it,” Lacayo wrote. “They didn’t do that during World War II. That’s because pictures don’t make up our minds for us. They don’t tell us the answers and we don’t expect them to. What they tell us is why the questions are important.”
News organizations also praised the change in policy. “The public has a right to see and to know what their military is doing, and they have a right to see the cost of that military action,” said Santiago Lyon, director of photography for the AP, in the February 26 New York Times story. “I think what we had before was a form of censorship.”
Release of Controversial OLC Memos
On March 2, 2009, the Justice Department released nine memos produced by the Office of Legal Counsel (OLC) in the months after Sept. 11, 2001 that advocate a broad interpretation of executive power.
The OLC provides legal advice to the president and all the executive agencies through written opinions and oral advice, in addition to reviewing the president’s executive orders and proclamations. According to its Web site, http://www.usdoj.gov/olc/, the OLC serves as “in effect, outside counsel for the other agencies of the Executive Branch [and] general counsel for the [Justice] Department itself.”
According to a March 4, 2009 story in The Washington Post, Attorney General Eric Holder had promised during his confirmation hearing in the Senate to release the memos. Justice Department officials also said that after formal review, more of the now discredited memos would be released.
The memos offer legal justifications for expansive use of executive power to fight terrorism. For example, one memo, dated Oct. 23, 2001, argues that the President can order the military to perform searches and seizures within the United States without a warrant as part of its efforts to combat terrorism. Another memo, dated Jan. 15, 2009, five days before the Bush administration left office, repudiates many of the legal positions adopted in the earlier memos.
According to a March 3, 2009 article on Law.com, administration officials also acknowledged that 92 videos created by the Central Intelligence Agency (CIA) that depicted interrogations of terrorism suspects had been destroyed.
“Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties,” Holder said of the released memos, according to The Washington Post. “Not only is that school of thought misguided, I fear that in actuality it does more harm than good.”
Promises of Openness in Economic Aid Programs
Obama has also indicated that under his leadership the government will be more transparent with federal programs designed to boost the ailing economy, such as the 2009 economic stimulus package and the remaining funds of a plan to bail out the nation’s banks known as the Troubled Asset Relief Program (TARP), initially launched under the Bush administration.
The proposed openness regarding TARP funds is a marked departure from Bush administration policy. Senior Bush administration officials said they feared forcing banks to reveal what they did with government funds would deter participation in the program and cause adverse stock market reactions, The New York Times reported in a Feb. 10, 2009 story.
Obama administration officials have said they reject this approach. “The priority now has to be restoring trust, demonstrating that the financial system can be supported in ways that are accountable and transparent,” said Lawrence H. Summers, director of the National Economic Council on the Feb. 9, 2009 edition of ABC’s “This Week With George Stephanopoulos.”
The Obama administration’s plan mirrors the recommendation of a Government Accountability Office report released in December 2008. The report found that the U.S. Treasury had failed to address a number of critical issues regarding TARP funds and recommended that “monitoring aggregate information across the [TARP] participants would help ensure an appropriate level of transparency and accountability.”
Obama administration officials have already made public hundreds of pages detailing bailout agreements with the nation’s largest banks, and it promised to publish any new TARP contracts it entered into. However, Treasury Secretary Timothy Geithner has come under criticism for his lack of specificity in a Feb. 11, 2009 press conference intended to explain the details of the plan. Lynn Tilton, CEO of the equity firm Patriarch Partners, said “Everybody thought there was going to be an actual plan everyone could jump on, but then we didn’t get details,” according to a Feb. 11, 2009 AP story.
Geithner said in a Feb. 12, 2009 New York Times story that he wanted to finalize TARP’s details before going public with the particulars of the plan. “I do not want to compound the mistakes of the last 12 months, when things were rushed out before they were ready, and strategy had to be adapted because of that,” Geithner said. “If that means that there is going to be disappointment with the level of details until we get it right, I will live with that disappointment because it is better than the alternative.”
Obama said that he also plans to keep expenditures in the $787 billion stimulus package signed on Feb. 17, 2009 open to public scrutiny.
At a Feb. 9, 2009 press conference held just before Congress passed the bill, Obama said the stimulus package “contains an unprecedented level of transparency and accountability so that every American will be able to go online and see where and how we’re spending every dime.”
Openness Policy Has Early Skeptics
Despite the early promises of openness, critics said the initial days of the Obama administration failed to produce the real change the candidate promised.
Shortly after Obama took office, major news agencies refused to distribute White House-provided photos of Obama in the Oval Office on his first day and of Obama retaking the oath of office, arguing that access should have been provided to news photographers.
In a January 27 interview on the National Public Radio (NPR) show “All Things Considered,” CBS White House reporter Bill Plante said news outlets needed to draw the line. “Do you originate the material, or do you function as a transmission belt for handouts from the government?” Plante said. “The whole idea of an independent press as guaranteed by the First Amendment is that it would serve as a watchdog and check on the power of government.”
The AP, Reuters, and Agence France-Presse (AFP) said the White House was breaking with long-standing tradition in not allowing news photographers to capture the president at work in the Oval Office on his first day, the January 21 AP story said. “We are not distributing what are, in effect, visual press releases,” said Michael Oreskes, managing editor for United States news at the AP.
The AP story said that news agencies have used White House-provided images in the past only for areas in the White House where media access is generally not permitted, such as the Situation Room or the private residence. But they contend that the Oval Office is the public office of the president and photographers should have access rather than be forced to rely on a government handout.
Vincent Amaluy, director of photography for North and South America for AFP, said in the AP story that he suspected the exclusion was the result of first-day confusion, not an attempt to clamp down on access.
In addition to the complaints about access for photographers, Lawrence Wright, a staff writer for The New Yorker magazine, said in a February 6 interview on NPR’s “On the Media” that he had not noticed any changes in FOIA implementation, despite the new administration’s promises. “I just don’t think that the government is moving in the direction that the president has indicated,” Wright said.
Washington Post media columnist Howard Kurtz also questioned Obama’s media management tactics in a February 9 column. Kurtz said Obama demonstrated strategic media tactics when he signed an order allowing federal funds to be used for international groups that promote abortion. Reporters and cameras were not allowed at the signing, presumably in order to downplay the divisive issue, Kurtz wrote.
Kurtz referenced several other incidents where Obama was reluctant to talk with reporters. The column also said some journalists are bothered by Obama’s practice of deciding the day before news conferences which reporters he is going to call on and notifying them in advance. Salon.com columnist Glenn Greenwald observed in a February 12 post that former President Bush was also known to use a pre-arranged list of reporters to call on for questions.
Kurtz reported that in his first week in office Obama toured the White House pressroom, but balked when a reporter asked a question about a Pentagon nominee. “Ah, see, I came down here to visit,” Obama said. “See, this is what happens. I can’t end up visiting with you guys and shaking hands if I’m going to get grilled every time I come down here.”
A January 26 post on The New York Times politics blog The Caucus criticized the Obama administration’s use of traditional “background briefing” sessions, in which no cameras are allowed and comments could be attributed only to “senior administration officials.”
“Does an administration that has pledged to be the most open and transparent one ever really need to have routine briefings be on background, by an official who can’t be named?” Times reporter Jeff Zeleny asked.
Obama Administration Claims ‘State Secrets’ Privilege
The continued use of the “state secrets” doctrine also elicited criticism in the early days of the Obama administration.
Despite promises of a thorough review of all state secrets claims, which the Bush administration often used to shield controversial anti-terrorism programs from lawsuits, government lawyers continued to invoke the state secrets privilege in a case before the 9th U.S. Circuit Court of Appeals in San Francisco, according to a February 10 AP story.
The state secrets privilege is an evidentiary rule that allows the Justice Department to avoid litigating a claim based solely on an affidavit swearing that continued litigation could expose state secrets and endanger national security.
The 9th Circuit case involves a lawsuit over the CIA’s extraordinary rendition program, in which some former prisoners contend they were tortured. Proving the torture claims in court has been difficult, since evidence to corroborate the prisoners’ claims has been protected by the president’s state secrets privilege.
American Civil Liberties Union (ACLU) Executive Director Anthony Romero criticized the new administration’s use of the legal doctrine in the San Francisco case in a February 10 AP story. “Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama’s Justice Department has disappointingly reneged on that important civil liberties issue,” Romero said in a statement.
On the Nieman Watchdog blog, a site run by the Nieman Foundation for Journalism at Harvard University, Drake University Journalism Professor Emeritus Herb Strentz cautioned that similar promises of openness have been made by past administrations. “We’ve been here before. When the Clinton administration came in, his attorney general, Janet Reno, issued the same kind of marching orders in 1993 that the Obama administration issued today, reversing the ‘don’t disclose’ polices of the George H.W. Bush and Ronald Reagan administrations,” Strentz wrote.
“The intentions were laudable, as they are today. But not much changed. That’s because the people in the trenches, including longtime civil servants, figure they know how to run their offices better than a short-term presidential administration. Those who had been open continued to be so; those of a more secretive bent continued to be so. Policies don’t always transfer into practice.”
– Jacob Parsley
Silha Research Assistant