Government transparency is vital to a free and well-functioning democracy, and it is particularly so in the area of national security. History shows that national security policies carry a heightened risk of intrusions into individual rights and liberties, making it all the more important that the people are kept informed of their government’s actions. Moreover, because these policies may help protect us from catastrophic attack, it is critical that they we get them right. Policies developed in secret—without the benefit of public scrutiny, debate, and input—are invariably less effective.
To be sure, national security policies implicate some information that properly should be classified and kept secret. The careful classification of information that could endanger our national security if released is a key part of keeping the country safe. But experts agree that far too much information is classified, and too much non-classified information is swept into the ambit of secrecy—to the point that entire policies have been improperly withheld from public and even from Congress.
The Bush administration was among the most secretive in history. Policies regarding detention, interrogation, rendition, and domestic surveillance were developed behind closed doors by a small, select group of officials. Legal memoranda purporting to justify these policies were kept under lock and key. Congressional inquiries and judicial review were thwarted by overbroad assertions of privilege. The result was a set of policies that violated both the law and our nation’s shared values. They also made us less safe by alienating our allies, providing powerful recruiting tools to our enemies, and undercutting our ability to insist on humane treatment of our own captured troops.
President Obama has pledged to take a different approach. Upon taking office, he heralded a “new era of openness” in which “this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.” But a report card issued this week by the Brennan Center’s Liberty and National Security Project suggests that the administration’s actions have not consistently lived up to this pledge.
The Brennan Center’s report card, entitled “Transparency in the First 100 Days,” analyzes 15 administration actions that directly or indirectly affect public access to information about national security and counter-terrorism policies. Examples include the Attorney General’s guidelines restoring a presumption of disclosure under the Freedom of Information Act; the new Defense Department policy allowing media access to dignified transfers at Dover Air Force Base; the release of Bush-era OLC opinions on torture; increased transparency in signing statements; overbroad assertions of the state secrets privilege in litigation; and opposition to a commission of inquiry to examine recent counter-terrorism abuses.
By dividing these actions into categories, clear patterns emerge. In the areas of open government and access to presidential records and information, President Obama has put excellent policies in place. All that’s needed now is faithful implementation—particularly when it comes to the area national security, which is too often seen as the exception to any rule. The administration also has made important strides in reducing the executive branch’s reliance on secret law.
But in cases where people seek accountability for government misconduct—whether through the courts, Congress, or an independent commission—the administration’s commitment to transparency falls by the wayside in every instance. Thus, the administration has asserted the “state secrets” privilege to block litigation, opposed an independent commission of inquiry to learn the full truth about torture and other abuses, and asserted the right to disregard a statutory provision designed to protect executive branch whistleblowers who provide information to Congress.
The President’s approach in these cases is embodied by the comment he made when he was first asked about Senator Leahy’s proposal for an independent commission: “I will take a look at Senator Leahy’s proposal, but my general orientation is to say let’s get it right moving forward.” On that occasion and several times since, he has implied that there is nothing to be gained by examining the mistakes of the past. He also reportedly told Democratic members of Congress that a commission would become a distraction from his ambitious policy agenda.
President Obama’s concern for his policy agenda is understandable. But by Obama’s own account, restoring the rule of law is one of the most important items on that agenda. Achieving that goal will be impossible if we simply sweep past mistakes under the rug, shutting down lawsuits that threaten to unearth the truth and eschewing a comprehensive, non-partisan inquiry. There is too much we need to learn: not just what the previous administration’s policies were, but how they were developed, why the mechanisms of congressional and judicial oversight failed so miserably, and what institutional changes are required in order to ensure that these abuses never happen again.
There is much to celebrate in the President’s early transparency record. The administration has opened windows onto the workings of government that have been shut for years. Perhaps equally important, the administration has signaled to the people of this country that they have a right to know what their government is doing. But this right should be stronger, not weaker, when the people seek accountability for government wrongdoing. Until the President embraces the principle of transparency in this context, his pledge to the American people will remain unfulfilled.