One of the nastiest running battles between Capitol Hill and the White House when George W. Bush was president concerned what the administration should disclose to Congress and how. The fight would flare regularly and then fade into a classic “he said/she said” stalemate.
Information would leak about some secret program. Lawmakers would object. And administration officials, Vice President Dick Cheney most prominent among them, would claim congressional leaders had been briefed and had given their approval.
But members of Congress, led mostly by Democrats, would insist they hadn’t been fully informed and didn’t know enough to provide appropriately informed consent. In various iterations, this fight took place over the decision to go to war in Iraq, the administration’s warrantless wiretapping program, its creation of secret CIA prisons, and its decision to use waterboarding and other harsh interrogation techniques against detainees who were presumed to be terrorists.
The latest episode of a Bush-era secret came to light only in the past month, when the current CIA director, Leon E. Panetta, first told Congress about a covert program of assassination teams targeting terrorist leaders that was born eight years ago. The enterprise was leaked in the press only last week.
Fast forward to the era of Barack Obama. Whatever the details of the Bush-era disputes — and many of those details remain in dispute — the rancor led most of official Washington to expect the new Democratic president to reverse course on most Bush policies affecting government secret-keeping. On the campaign trail, Obama had said as much, pledging to overturn what he described as Bush’s drive to evade congressional oversight and public scrutiny and “bring more and more power into the executive branch.”
On his first full day as president in January, Obama appeared to abide by that promise. He issued a memorandum to all federal departments and agencies ordering an “unprecedented level of openness in government.” His administration, he declared, would operate from Day One on the premise that if lawmakers or citizens request information, they should get it.
Those words cheered government watchdog groups and Obama’s fellow Democrats in Congress. But in the six months since, their optimism has dimmed. In practice, the new president’s record on government secrecy and transparency has turned out to be decidedly mixed, with his administration seeming to take as many steps toward shielding government information as it has toward exposing it to the sunshine.
Two events in particular have struck advocates of more open government as disingenuous. The first was Obama’s refusal to release records of White House visits this spring by coal industry executives — the same position Bush took on records about visits by energy industry lobbyists at the outset of his administration.
The second was Obama’s threat that he would veto a bill reauthorizing U.S. intelligence-gathering activities if it set any curbs on the sort of limited, cryptic congressional briefings on intelligence matters that the Bush administration favored. Obama said he wouldn’t accept the bill if it required his administration to brief the full membership of the House and Senate Select Intelligence committees instead of just the so-called Gang of Eight — the chairmen and ranking minority members of the Intelligence panels and the top Democratic and Republican leaders in the House and Senate.
“There is no question that there has been a very disturbing trend of adopting many of the same anti-transparency policies of the Bush administration,” said Anne L. Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington (CREW), which promotes government openness. “The president’s statements all would suggest that they would be transparent in a number of ways that they are refusing to be.”
David Sobel, senior counsel at the Electronic Frontier Foundation, which studies and advocates on electronic privacy issues, says he has been struck by how closely Obama is hewing to Bush-era objections to increased disclosure.
For instance, the new administration used arguments identical to those marshaled by Bush’s Justice Department when it moved in April to dismiss a lawsuit brought by Sobel’s organization on behalf of those who contend that they were subjected to illegal warrantless wiretaps. “No change. Not one word,” Sobel said. “They’ve said all the right things, but they haven’t really delivered on the rhetoric.”
Many kinds of openness
Depending on who’s talking, Obama’s administration can be described as either one of the most accountable and open in history, or one of the least. One reason is that the term “open government” means different things to different people.
For some, it means that, in the Internet age, citizens can boot up a computer and quickly gain access to thousands of pages of government documents and megabytes of federal statistics and crunch them to their hearts’ content.
For others, it means that if a citizen has a concern or wants to express an opinion, he no longer has to put a letter in the mail or telephone his congressman. Instead, he can post a message on a government Web site or send an e-mail making his point — and sometimes receive a response — almost immediately. In fact, new interactive Internet tools are designed to allow citizens to participate directly in the deliberations around and drafting of government policies.
So far Obama gets good marks in those areas. The administration is in the middle of several initiatives to use the access and reach of the Internet to improve the flow of information between citizens and government. For instance, the White House Office of Science and Technology Policy conducted a series of online discussions this spring as part of its effort to draft an Open Government Directive to guide federal departments and agencies. It even set up an open-access writing site — a “wiki” in Internet-speak — on which ordinary citizens can help write and edit a communal text of the directive.
Two Web sites in particular have drawn praise from advocates of greater openness in policy making: USAspending.gov provides detailed information about government contracts, grants and other forms of spending; and Data.gov, intended as a one-stop shop for number crunchers that consolidates statistics across federal agencies in standard, machine-readable formats.
Each site calls itself an “IT dashboard” to navigate electronically through the government. In theory, researchers anywhere in the country will someday be able, for instance, to download data on tornadoes or snowstorms and compare it with government spending for weather emergencies. Or analysts might compare changes in school test scores in different regions against the amount of federal money devoted in those areas not only to education, but to health care, housing or unemployment. Until recently much of that data has resided in unconnected databases.
The sites “could be a vehicle for connecting government performance to spending,” said Gary Bass, executive director of OMB Watch, an independent research group that monitors government activities. “From the point of view of the average user, there has been nothing like this before. That is truly a credit to this administration.”
As it happens, it was OMB Watch that built the technical platform that is now used for USAspending.gov. After Congress passed the 2006 Federal Funding Accountability and Transparency Act (PL 109-282) — a bill whose lead Democratic sponsor was Barack Obama , then the junior senator from Illinois — the Office of Management and Budget purchased the license and used it to build the current government-run Web site.
Posting raw government data online doesn’t only make it easier for news organizations, advocacy groups and ordinary citizens to analyze how well the government is working. It also should improve the productivity of agency bureaucrats by giving them wider access to basic information from all parts of government. In theory, that should make Washington not only more accountable to people on the outside, but more efficient for people on the inside.
“I’m in awe of how much has happened,” Bass said. “Six months is not a lot of time.”
Working out the kinks
That’s not to say that there haven’t been missteps. One Web site that Bass says hasn’t lived up to its promise is Recovery.gov, which Obama announced with fanfare last winter, promising it would track in detail all of the $787 billion in spending authorized by the economic stimulus legislation (PL 111-5). Bass said guidelines issued by the administration suggest the site will follow the money down no more than two levels, meaning it might be possible to discern that a grant went to a particular state and then to a particular state government program — but not any further. It might not be possible to track the money to an individual city or community, much less to a particular contractor or subcontractor. In Bass’ view, such limited information is too vague to provide genuine accountability.
While such transparency initiatives are still in development and their kinks are still being worked out, most open-government advocates remain hopeful that their potential will be realized.
“A default position that government data will be accessible to the public in machine-readable format is a huge step forward,” said Ellen S. Miller, executive director of the Sunlight Foundation, which promotes open government policies. “Is it moving as fast as I’d like? Of course not. But I can be patient while this unfolds.”
Perhaps the most ambitious example of the administration’s efforts to harness the Internet to promote participation in government is the Open Government Directive project itself. It also may be the clearest example of the problems such efforts can encounter.
When the Office of Science and Technology Policy inaugurated its Internet discussion boards, some quickly filled up with posts by people on the political fringes flogging their pet issues, from those promoting the legalization of marijuana to those who theorize that Obama’s birth certificate is a fake, that he wasn’t really born in the United States and so isn’t constitutionally qualified to be president. When the office started its wiki Web site for users to write drafts of the Open Government Directive, the result was disjointed and rambling. The directive was initially intended to be issued in May, but a formal date has yet to be set.
White House officials learned from that experience, however. In late May, Obama asked administration officials to devise a new policy on declassification of government documents. Since then, the science office has moderated an online discussion of declassification goals and procedures officials describe as unusually productive.
Open-government advocates warn, however, that it’s important for the public to distinguish between process and results. If the policies that result don’t improve government transparency, there’s little reason for the Web sites and wikis.
“I don’t want to diminish their importance,” CREW’s Weismann said. “A lot of it is providing a forum for public input, and that is good. But everything they are doing on that front, they are doing it on their terms.”
And some of the initiatives, such as “town hall” meetings, have been fairly tightly controlled by the White House, the Sunlight Foundation’s Miller complained. “There is real transparency, and then there is transparency theater,” she said. “I can distinguish between the two.”
Democracy vs. secrecy
Participatory democracy may be all well and good, but for some who promote transparency in government, it’s beside the point. While all administrations have information they want to release, the difficulty comes with the information they want to withhold.
Steven Aftergood, who directs efforts to combat government secrecy at the Federation of American Scientists, says the law Obama worked to pass as a senator focused on making the routine functions of government more accessible and understandable. Such information was never secret, exactly; it was just much harder to find and retrieve in the pre-Internet age. What Obama’s legislation didn’t address was information that government officials actively want to keep secret — sometimes to protect the country but sometimes to protect themselves.
“It doesn’t require political courage to publish information about tornadoes, because there is no pro-tornado lobby trying to suppress the information,” Aftergood said. “The kind of activity on Data.gov and its sub-Web sites is a direct extension of the work that Obama did as a senator. What it is not is a revelation of the classified secrets of the past administration or even the present administration.”
Certainly, the new administration has made a few, much-heralded reversals of its predecessor’s policies. The most notable was Obama’s decision to release four memos written by the Justice Department’s Office of Legal Counsel (OLC) in 2002 and 2005 that provided a legal rationale (which Bush eventually abandoned) for harsh interrogation of terrorism suspects — tactics that many label torture. Another was Obama’s decision to permit news organizations, so long as the families agree, to photograph the coffins of dead soldiers when they return from Iraq or Afghanistan to Dover Air Force Base in Delaware.
But the list of instances in which the Obama administration has sought to keep government secrets under wraps is far longer, many secrecy critics complain. “The declassification of the OLC memos on torture was a breakthrough,” Aftergood said. “Four of them were declassified and released. There are an unknown number of others that have not.”
Another disappointment for open-government advocates was Obama’s decision not to release photos of suspected terrorists being interrogated — even though those photos were never classified. In a speech explaining his decision, Obama argued that doing so “would inflame anti-American opinion and allow our enemies to paint U.S. troops with a broad, damning and inaccurate brush, thereby endangering them in theaters of war.”
But for watchdog groups, that rationale comes close to one the president himself had denounced the day after taking office: that governments hold on to secrets “because errors and failures might be revealed, or because of speculative or abstract fears.” As Thomas Blanton, director of George Washington University’s National Security Archive, puts it: “Take that argument to its logical outcome and it becomes, ‘The worse government behavior is, the more it shouldn’t be released.’”
Legal architecture
Struggles over government secrecy play out in two principal arenas: congressional oversight and the courts. Under the Constitution, Congress has the right to oversee the work of the executive branch and all its agencies. And under a series of laws — including the Freedom of Information Act (FOIA), the Presidential Records Act and the Sunshine Act — the public may demand access to a wide variety of information about the government.
Presidents rely on two strands of legal argument to refuse such requests, both of which are rooted in the principle of separation of powers: the state secrets privilege and executive privilege. Under the theory of protecting state secrets, the president may decline to release information that might endanger national security, such as the location of its military assets or the identities and whereabouts of spies. Executive privilege exists to give reasonable confidentiality to deliberations of a president and his closest aides, so they have the privacy and latitude to make careful choices. Both, of course, can also be used to hide a president’s misdeeds or errors. And it isn’t easy to know which is which without uncovering the secret along the way.
One way of gauging the legitimacy of the government’s secrecy policies is to challenge them in court. Sobel of the Electronic Frontier Foundation is doing just that in a lawsuit, Jewel v. National Security Agency, which alleges that the government illegally spied on five ordinary Americans without obtaining special warrants, as required by the Foreign Intelligence Surveillance Act.
Access to White House visitor logs — a running battle with the Bush administration — is one issue on which many Obama observers have been disappointed. While a president’s personal papers are confidential under the Presidential Records Act, federal courts have ruled that lists of White House visitors compiled by the Secret Service are subject to release under FOIA.
Those logs have provided helpful information to government watchdog groups and investigators in the past. For instance, they helped track visits to President Bill Clinton by former intern Monica Lewinsky — the focus of his impeachment — and by Denise Rich, wife of fugitive financier Marc Rich, who was granted a controversial pardon by Clinton.
But when Bush took office, his administration sought to keep the comings and goings of presidential visitors secret. Citing executive privilege, the Bush White House refused to release information, to the public or to Congress, on the meetings of an energy policy task force that met with Cheney, and the Supreme Court eventually upheld that decision. In January, however, a federal district judge ruled that the Secret Service logs are the property of the Department of Homeland Security, and so they must be released under FOIA.
That decision is on appeal. But not only did the Obama administration pick up the appeal where the Bush administration left off, it has made the same arguments for reversing the lower court’s decision. In the meantime, Obama’s team has refused to release White House logs that might verify visits from coal company executives and health care lobbyists — both areas in which the administration is currently formulating new policies.
“We’re getting the same response that the public got from the Cheney task force,” Weismann said. “It’s really kind of striking.” When it comes to walling off government information, “the legal architecture has not changed.”
White House visitor logs are a particular interest for Judicial Watch, a watchdog group with a conservative bent that used FOIA to keep tabs on Clinton’s visitors. The group also sued the Bush White House for information on the Cheney energy task force, which it regarded as equivalent to the secretive White House health care task force run by first lady Hillary Rodham Clinton in 1993. Now Judicial Watch is suing the Obama administration to force the release of Bush-era documents the group says will verify claims that harsh interrogations helped derail terrorist attacks.
“I think transparency is a nonpartisan issue,” said Judicial Watch President Tom Fitton. “What partisans expect administrations to be transparent about is where the partisanship comes in.”
In a couple of ways, Obama may be even more secretive than Bush. Fitton said he is concerned about White House policy “czars” — on health care and environmental policy, for instance — whom Obama has named. If their jobs were at the agency level, he said, they would be subject to FOIA. But as White House aides, they aren’t. “Our experience is that despite the rhetoric, the Obama administration throws up more bureaucratic obstacles and process barriers than the Bush administration did,” he said. “And in terms of litigation, there is no difference. In the end, that means President Obama’s administration is more secretive.”
Faithfully executing
White House officials shrug off such complaints. “I think the president underscored his commitment to transparency on his first full day in office,” Press Secretary Robert Gibbs said at a regular White House briefing last month. “This is not a contest between this administration or that administration or any administration.”
But the bottom line is that there is usually a disconnect between what presidential candidates say about secrecy and what presidents do about it after they take office, say advocates of more transparent government actions. “It’s very difficult to give up power once you have it,” said Weismann. “The ability to control what information about your administration and its decisions and policies become public is something you don’t want to give up.”
“Obama has taken an oath not to leave that office any weaker than he found it,” says J. William Leonard, who has watched the tug of war between openness and secrecy play out in administration after administration. Previously a director of security programs at the Department of Defense, Leonard served as director of Information Security Oversight at the National Archives from 2001 to 2008. “During Bush, we saw the executive assert new unilateral authorities for the first time. Now that we have a new president, it’s unrealistic to expect him to walk away from those unilateral authorities.”
But there’s a chance that Obama might still do that. Gibbs said the administration is in the process of reviewing its legal policies on executive branch disclosures as part of the open-government directive.
So even the most critical advocates of increased openness say they remain hopeful that Obama will move the needle on legal challenges to government secrets, as he already has through Internet-based tools to open government information to the public. In fact, the Sunlight Foundation’s Miller says the two might be more connected than some think. The more people expect the Internet to deliver the information they want, the more kinds of information they will expect to access that way.
“It’s kind of a genie out of the bottle,” she said. “The Internet has raised expectations. I fundamentally believe that the way technology pushes information out to the edges will have a powerful effect on the power structure.”