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.
US government photo.
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.
© 2014 FireDogLake
Kevin Gosztola is a writer and documentary filmmaker whose blog, The Dissenter, is posted at FireDogLake.
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