Despite a pledge to open government, the Obama administration has endorsed a Bush-era decision to keep secret key details of an FBI computer database that allows agents and analysts to search a billion documents with a wealth of personal information about Americans and foreigners.
President Barack Obama's Justice Department quietly told a federal court in Washington last week that it would not second-guess the previous administration's decisions to withhold some information about the bureau's Investigative Data Warehouse.
The Electronic Frontier Foundation, a digital rights advocacy group, had sued under the Freedom of Information Act to get records showing how the FBI protects the privacy of Americans whose personal information winds up in the vast database.
No public list of databases
As a result, there is no public list of all the databases the FBI sucks into this computer warehouse; no information on how individuals can correct errors about them in this FBI database; and no public access to assessments the bureau did of the warehouse's impact on Americans' privacy.
"In light of all the fanfare at the highest levels of the administration about a new transparency policy, it's remarkable that not one word of additional material has been released as a result of that new policy," said David Sobel, the foundation's lawyer in the case.
The administration's handling of the decision fit a pattern that emerged this month: Highly visible announcements when Obama breaks with Bush policy in order to open hidden government files, but an almost stealthy rollout of decisions when Obama endorses secrecy.
"There has been a lack of consistency on the part of the administration when it comes to secrecy issues," said James Dempsey, vice president for public policy at the Center for Democracy and Technology, an open government advocate. "They do seem to be torn between two conflicting tendencies: One is openness and other is a control-the-news tendency. But it's still early in the administration, so I cut them some slack for not having this fully thought out yet."
Justice Department spokeswoman Tracy Schmaler offered a different explanation: "Some withholdings are necessary in order to protect privacy, national security and other interests."
There's no lack of openness when Obama changes Bush policies.
On his first day in office, Obama reversed a policy on releasing government documents so there is a "presumption in favor of disclosure." Attorney General Eric Holder promptly beat Obama's deadline by two months for issuing new guidelines that urged release unless "foreseeable harm" would result.
Secret legal opinions opened
With a flourish, the Justice Department has opened two batches of secret legal opinions crafted to support Bush's anti-terrorism polices. Just Thursday, four Bush-era legal opinions that relaxed restrictions against torture of prisoners were made public, accompanied by a department news release and a statement from Obama.
In contrast, the decision to endorse Bush's withholding of records about the FBI's data warehouse was filed in federal court last Monday with no other public word from the current administration.
On April 3, the Obama administration issued no presidential statement or general Justice Department news release when it told a federal court in San Francisco that a lawsuit by AT&T customers to stop domestic wiretapping by the National Security Agency must be halted to avoid disclosing state secrets.
Instead, a court brief containing the decision was filed electronically with the San Francisco court at 8 p.m. EDT Friday.
Schmaler said the department had a statement prepared in case anyone called to ask about the filing. But in the NSA case, and the FBI case, the department did not follow the Bush administration practice of e-mailing reporters a copy of government briefs in newsworthy cases as soon as they are filed with a court.
State secrets privilege
During the presidential campaign, Obama said Bush invoked the state secrets privilege too often, and Holder has ordered a review of those cases. But Obama has since reasserted it in two cases where Bush earlier claimed it to prevent disclosure of his anti-terror tactics.
The NSA wiretapping case, filed shortly before Bush left office, was the first time Obama asserted the privilege on his own to try to kill a suit.
Last Monday's decision not to release additional documents about the FBI data warehouse was the first one about a pending case since Holder issued the new freedom of information standard and said Bush-era decisions involved in pending suits could be revisited.
U.S. District Judge Reggie Walton had given the government 60 days to decide whether the new guidelines might alter its position. The government's response declining to disclose more data did not say whether the Justice Department used the time to re-evaluate the Bush-era decisions.
Comparing the Obama decisions, attorney Sobel said, "The `torture' memos affected a handful of people while this database potentially affects millions of American citizens. The average American was not likely to be tortured at the Guantanamo Bay prison, but they are likely to have information about them in this massive database which remains a black hole. We don't even know what material they're collecting."
Begun in 2004, the data warehouse contains at least 53 databases that are refreshed regularly. Nearly three-quarters of the data comes from outside the FBI. Some 13,500 FBI agents, 2,000 FBI analysts and selected other federal, state and local law enforcement officers on joint task forces with the FBI can access the material, which includes unclassified documents and data classified confidential or secret, but not top secret.
Censored documents released
The heavily censored documents already released show the warehouse contains the FBI's electronic case files; its lists of people and groups "associated with" violent gangs and terrorist organizations; criminal histories from the National Crime Information Center; messages between the FBI and other agencies; newspaper stories from around the world; data about lost, stolen or fraudulent passports; CIA intelligence reports; suspicious banking activity reports; and lists of people barred from aircraft or subject to extra searches before flying.
But the names of more than half the data sets in the warehouse are blacked out.
In the Justice Department's brief, FBI freedom of information chief David Hardy said that "knowledge of the data sources ... would enable individuals involved in criminal or terrorist activities to adapt their activities and methods to avoid detection." New department guidance for deletions like this cautions agencies to "ensure that they are not withholding based on speculative or abstract fears."
The released documents also show the FBI assessed the data warehouse's impact on the privacy of Americans, but won't make those assessments public because it believes federal law doesn't require that.
The new Justice guidance, however, says agencies "should not withhold information simply because (they) may do so legally." It urges release of information that can be made public without "foreseeable harm."