Transparency in the First 100 Days | Accountability

April 27, 2009

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Open Government | Presidential Records | Secret Law | Accountability
Methodology


The principles of government transparency and accountability are inextricably linked. Whenever government information is withheld from the people, the people lose their ability to assess the performance of their representatives and react accordingly. Each of the above sections of the report thus has implications for accountability.

The issue of accountability becomes particularly focused, however, in cases where evidence of government wrongdoing has emerged. In such cases, the need for accountability—whether through lawsuits, congressional investigations, or other means—is acute; without it, the misconduct is far more likely to continue or recur. And, of course, the most powerful tool for avoiding accountability is the withholding of information. Using this tool, the Bush administration resisted and often prevented full inquiries into its abuses of power in the area of counter-terrorism.

The Obama administration has thus far continued the practice of resisting efforts to hold the Bush administration accountable for its actions. In doing so, it is preventing the public from learning the full truth about what the previous administration's counter-terrorism policies and practices were—information that is critical for both Congress and the people to make informed choices about these policies going forward. Moreover, when a president resists efforts to hold a previous administration accountable, it begs the question: how receptive will he be to calls for transparency and accountability when his own policies are challenged?

State Secrets | FISA immunity | Independent commission | Whistleblower protection

Overbroad assertions of the state secrets privilege
Obama's gradeThe state secrets privilege, used correctly, prevents disclosure of evidence in litigation when the government can prove to the court that such disclosure would harm national security. It has been used in that manner for decades, including during the height of the Cold War. The Bush administration, however, conceived the privilege more broadly. It frequently argued that cases must be dismissed at their outset—before the relevant evidence had even been identified, let alone reviewed by the court to see if it was privileged—because the very subject matter of the case was a state secret.

Many lower court judges, reluctant to delve into the thorny issues presented by these cases, accepted the government's "subject matter privilege" argument and dismissed the lawsuits. In this manner, lawsuits challenging the government's warrantless wiretapping program and the practice of "extraordinary rendition" (capturing people and sending them to other countries to be tortured) were shut down.

During his presidential campaign, Obama criticized the Bush administration for "invok[ing] a legal tool known as the ‘state secrets' privilege more than any other previous administration to get cases thrown out of civil court." In February of this year, the Justice Department announced that it would conduct a review of ongoing cases in which President Bush had asserted the privilege "to ensure it is being invoked only in legally appropriate situations." Many hoped that this announcement signaled a new approach to claiming the state secrets privilege. But the administration's actions in three cases strongly suggest that the new approach is the same as the old.

In the first case, the plaintiffs had sued an airline for its role in delivering them to other countries to be tortured. The Bush administration intervened in the lawsuit and asked that the case be dismissed because the very subject of "extraordinary rendition" is a state secret. The trial court judge agreed, going so far as to suggest that the CIA is immune to civil lawsuits for their actions overseas. Given the sweeping nature of the holding, it was widely assumed that the Obama administration would not try to defend it on appeal. Instead, the Justice Department surprised even the panel of appeals court judges by asserting that its position in the litigation was identical to that of the Bush administration.

In the second case, a U.S.-based Muslim charity had sued the government for eavesdropping on its electronic communications without a warrant. The Bush Justice Department accidentally gave the plaintiff's lawyers a document proving that the surveillance had occurred. It demanded that the document be returned because it was a "state secret." The plaintiff's lawyers complied—and the Bush administration then argued that the plaintiff lacked standing to sue the government because it had no evidence that the government had targeted it.

In January, the trial court judge ruled that lawyers for the plaintiff who were granted security clearances by the FBI could view the document under strict security protections. The Obama administration filed an emergency motion to stay the ruling while the Justice Department appealed it. When the court denied the stay request, the Obama administration informed the trial court judge that, if he tried to grant the plaintiff's lawyers access to the document in question, the Justice Department would consider "withdraw[ing] that information from submission to the court." In other words, the Obama administration would short-circuit the judge's ruling on the privilege issue by simply removing that document from the judge's custody.

The third case also involved a challenge to the illegal warrantless wiretapping program. The case was filed late last year, and when President Obama took office, the government had not yet filed a brief stating its position. The Obama Justice Department requested and received an extension of time to consider what the government's position should be. On April 3, the Justice Department moved to dismiss the lawsuit because the subject matter it implicates is a "state secret."

The Obama administration has thus defended invoking the state secrets privilege to prohibit judicial consideration of entire subject matters and to deny attorneys with top-level security clearances access to documents they have already seen. And it has gone further, suggesting that judges' rulings on the privilege can be evaded by taking the documents away from them. While some have expressed hope that President Obama will use the privilege more sparingly in lawsuits challenging his own administration's conduct, that prospect seems counter-intuitive at best.

Recommendations

File supplemental briefs withdrawing overbroad privilege claims; support legislation to regulate the privilege (as advocated by the Brennan Center), such as the State Secrets Protection Act, which permits courts to dismiss lawsuits only after the allegedly privileged evidence has been identified and reviewed by the court.


Defense of immunity for telecommunications companies
Obama's gradeAfter the New York Times revealed in 2005 that the government had been wiretapping Americans without warrants, several lawsuits were filed against both government officials and the telecommunications companies that assisted them. Because government actors can raise a variety of defenses to lawsuits, many believed that the suits against the telecom companies represented the best hope for shedding light on the illegal program and achieving accountability.

In 2008, however, members of Congress introduced legislation that would grant retroactive immunity to telecom companies upon certification by the Attorney General. Shutting down these lawsuits would help ensure that the details of the illegal program—such as how many Americans were wiretapped and the criteria for identifying targets—never come to light. Then-Senator Obama spoke out against immunity for telecom companies, but ultimately voted for a bill that contained the immunity provision. That bill became law, and Attorney General Michael Mukasey filed a certification to immunize the telecom companies.

Obama's supporters hoped that, once elected, he would try to legislatively undo the immunity provision or that his new Attorney General would withdraw the certification. In his confirmation hearings, however, Attorney General Eric Holder indicated that the Justice Department's duty was to defend legislation, and that the Justice Department was highly unlikely to "reverse course" on the issue of immunity for telecom companies. And on February 25, the Justice Department filed a brief in federal court defending the constitutionality of the immunity provision and arguing that the case against the telecom companies must be dismissed.

Of course, a statute can be constitutional and still be bad policy. It would thus be possible for the administration to defend the constitutionality of the immunity provision in court, while still seeking to undo immunity through legislation or through withdrawing the certification. But the signs are discouraging. The February brief contains language signaling this administration's approval of the policy behind the immunity provision, describing the statutory procedures for keeping the Attorney General's certification secret as "a congressional endorsement of the Executive's judgment that national security information concerning the allegations at issue . . . must be protected from public disclosure."

Recommendations

Promote and support legislation overriding the statutory immunity provision and/or withdraw Attorney General Mukasey's certification.


Response to proposal for a commission of inquiry
Obama's gradeWe know that many of the Bush administration's counter-terrorism policies veered badly off course. Indeed, there is evidence that some of these policies violated the law, as well as our nation's shared values. The warrantless wiretapping program, for example, almost certainly violated both the Foreign Intelligence Surveillance Act and the privacy of law-abiding Americans. Waterboarding, inflicted on at least three detainees, is generally understood to be torture and thus illegal. The evidence is overwhelming that the U.S. captured people and sent them to be interrogated by countries known to practice torture.

Still, much—if not most—of the information about these policies remains secret. In order to achieve accountability for these transgressions, implement the changes needed to prevent any recurrence, and make informed choices about our counter-terrorism policies going forward, it is critical that we learn the full truth about what happened. To this end, the Chairmen of the Senate and House Judiciary Committees have proposed an independent, non-partisan commission of inquiry, along the lines proposed by the Brennan Center last year.

An independent commission is the best and perhaps only hope of obtaining the needed information. President Obama has said that the Justice Department will not prosecute those who relied on OLC opinions; and even if prosecutions were to occur, they would reveal only what happened in specific instances—not the full policies at issue, how they were created, their broader consequences, and what institutional reforms are necessary to prevent similar abuses in the future. Congressional inquiries can and should take place, but they too are unlikely to paint a full picture, given resource constraints, issues of committee jurisdiction, preoccupation with the economy, and the ever-widening partisan divide.

President Obama's support for the commission proposal is critical to its success. His initial response to the commission idea, however, was decidedly lukewarm. When asked about it at a February press conference, he responded: "[N]obody's above the law and, if there are clear instances of wrongdoing . . . people should be prosecuted just like any ordinary citizen. But . . . generally speaking, I'm more interested in looking forward than I am in looking backwards."

Following the release of OLC memos detailing the interrogation techniques used by the CIA, the President's tone and posture toward the commission proposal appeared to shift. Without going so far as to endorse a commission, the President told reporters that "if and when there needs to be a fuller accounting of what took place during this period," a congressionally-created bi-partisan commission would be the best approach. He also emphasized that any inquiry must avoid partisan political goals and instead seek "to learn some lessons so that we move forward in an effective way" —a statement that appeared to acknowledge the forward-looking benefits of a commission.

Within days, however, the President's position appeared to shift again. The New York Times reported that the President told Democratic congressional leaders he did not want such an inquiry to take place. He reportedly expressed concern that a commission "would potentially steal time and energy from his ambitious policy priorities, and could mushroom into a wider distraction by looking back at other aspects of the Bush years."

President Obama’s concern for his policy agenda is understandable. But on many occasions, he has cited restoring the rule of law as one of the most important items on that agenda. That goal simply cannot be achieved while the full facts about what went wrong with our nation’s counter-terrorism policies remain buried. While President Obama has stated that he will not be an “obstacle” to Congress creating a commission, his public opposition to the idea is itself an obstacle, as well as a blow to the principle that this country should learn from its mistakes instead of sweeping them under the rug.

 

Recommendation

Support the commission proposal and use the influence of the Office of the President to gain support in Congress and the public.


Statement of authority to limit disclosure of information to Congress
Obama's gradeIn signing a $410 billion omnibus spending bill into law in March, President Obama issued his first signing statement. The statement could have a chilling effect on government employees who have discovered misconduct in the executive branch and seek to "blow the whistle" by telling Congress what they know, thus facilitating accountability through congressional oversight.

The statutory provision addressed by the signing statement would prohibit executive officials from interfering with or punishing communications to Congress by other government employees, whether those communications are initiated by the employees or solicited by Congress. President Obama's signing statement asserts: "I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential." The statement is similar to signing statements issued by President Bush in response to versions of this provision contained in previous years' appropriations bills.

President Obama's signing statement is a strike against transparency in two ways. First, there is no way to "interpret" a flat prohibition on limiting communications with Congress as permitting the heads of executive agencies to control those communications. Referring to his objection as an "interpretation" obscures the fact that President Obama is asserting the authority to violate the terms of the statute.

Second, the assertion of control over federal employees' communications, in this context, raises red flags. It is true that, as a general matter, the President should be able to regulate the means by which information generated in the executive branch is disseminated. The statutory provision at issue, however—while worded generally—was intended to address a particular circumstance: the exposure by whistleblowers of government misconduct. In such cases, allowing the heads of executive branch to "control" the employees' communications defeats the very purpose of the communications, and prevents effective congressional oversight and accountability.

President Obama's statement includes the caveat that control over employees' communications is contemplated only where those communications "would be unlawful or would reveal information that is properly privileged or otherwise confidential." This limitation is analogous to language President Bush used in his signing statements; for example, a 2004 signing statement on the whistleblower provision stated that Bush would construe it "in a manner consistent with the President's constitutional authority to withhold information that could impair foreign relations, national security, the deliberative process of the Executive, or the performance of the Executive's constitutional duties." In both cases, the limitations contain catch-all provisions ("otherwise confidential" information or information that could impair "the performance of the Executive's constitutional duties") that leave the executive branch with a great deal of room to control communications.

Of course, claiming the authority to control employees' communications is not the same as doing so. As a lawyer, a senator, a presidential candidate, and the president-elect, Obama's record on the protection of whistleblowers has been commendable. As part of his ethics agenda articulated during the transition, he recognized that "[o]ften the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance."

It is thus possible that President Obama does not intend to use the authority he claimed in his signing statement to interfere with communications by whistleblowers. Nonetheless, by objecting to a provision that was designed to prohibit retaliation against employees who reveal executive misconduct, President Obama's statement intentionally or unintentionally sends a message to employees: If you report misconduct to Congress against the will of the head of your agency, and if the agency considers that information "confidential," you may face retaliation. This could have a chilling effect on potential whistleblowers and hinder the public's ability to learn about government wrongdoing.

Recommendations

Publicly commit to prohibiting interference with, or retaliation for, government employees' efforts to disclose government waste, fraud, or abuse; support legislation to strengthen whistleblower protections.


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