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Open Government | Presidential Records | Secret Law | Accountability
The principle of open government holds that the public has a right to know about, and participate in, the actions of government. It is rooted in the concept of democracy, as responsible self-governance is impossible when the people are uninformed about, and excluded from participation in, their government’s operations. It is rooted in the concept of liberty as well, since an informed public is in a much better position to protect constitutionally guaranteed rights and freedoms. And it is rooted in the practical idea that when information is shared, the quality of the resulting government policies is improved.
To ensure that government functions openly, the people should have a right to view the records generated by governmental agencies except in narrow, carefully delineated circumstances. Moreover, policy-making should be conducted openly and with input from the true stakeholders in those policies: the people. President Obama’s initial steps in these areas are quite positive, but much will depend on how he carries through on those steps—and whether he extends his views of open government to the area of national security.
Day One | FOIA | Public access to policy-making | Media’s right to report
“Day One” emphasis on transparency
On his first full day in office, President Obama firmly placed the weight of his office behind a commitment to government transparency, openness, and accountability. In an address to White House senior staff, he repudiated the secretive policies of the recent past and heralded what he called a “new era of openness.” He proclaimed that “every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known.” To this end, he declared, “information will not be withheld just because I say so . . . . It will be withheld because a separate authority believes it is well-grounded in the Constitution.”
President Obama supported his stated commitment to openness with orders and memoranda that echoed the recommendations of open government groups and, if fully implemented, would result in a perhaps unprecedented level of transparency and openness in government:
- He issued a memorandum on Transparency and Open Government. In addition to declaring his commitment to transparency, the memorandum directed the Office of Management and Budget to issue an Open Government Directive, which will instruct executive departments and agencies on actions they should take to make government information more readily available to the public.
- He issued a memorandum to the heads of executive agencies and departments instructing them that “[a]ll agencies should adopt a presumption of disclosure” in responding to Freedom of Information Act requests. The memorandum directed the Attorney General to issue new guidelines implementing this presumption.
- He issued an executive order rescinding President Bush’s overly restrictive policy regarding access to presidential records under the Presidential Records Act (PRA).
The substance of the FOIA and PRA orders are discussed and evaluated below. But the symbolic importance of issuing these orders (and the Transparency and Open Government memorandum) on the President’s first full day of office deserves its own commendation. With all the pressing and high-profile issues facing the administration—including the economy, wars in Iraq and Afghanistan, torture, and Guantánamo Bay—President Obama chose to highlight the importance of transparency, even though it meant using the Day One spotlight for such a little-known and arcane issue as the proper interpretation of the Presidential Records Act.
To be sure, President Obama did not mention national security information specifically, and too many presidents have treated this area as an exception to almost any rule. Nonetheless, the President’s show of commitment is a promising indication of what is to come—a promise we hope his administration will live up to.
Back up the promises with action—particularly in matters pertaining to civil liberties and national security.
Restoration of presumption of disclosure under FOIA
One of President Obama’s “Day One” orders was a memorandum directing the Attorney General to issue new guidelines establishing “a presumption in favor of disclosure” under the Freedom of Information Act (FOIA). If the presumption is faithfully applied, it will reverse one of the most problematic policies of the Bush era.
FOIA is a key tool of open government that allows the public to request and obtain records from government agencies. Under the Act, the government is entitled to withhold a few categories of information, such as trade secrets or information that could compromise ongoing criminal investigations. But in many cases, the government has discretion to disclose information even if it is not required to do so. Accordingly, the operation of FOIA may be very different under different administrations.
Under Presidents Reagan and H.W. Bush, the Justice Department’s policy was that it would defend an agency’s decision not to disclose a document if there was any legal basis for the withholding. There was no incentive for agencies to exercise their discretion in favor of release, and the clear message was: “Withhold if you can.” But in 1993, Attorney General Janet Reno issued a memorandum establishing a “presumption of disclosure” for FOIA requests. The memo specified that the Justice Department would defend an agency’s decision to withhold records only if the agency had reasonably determined that disclosing the records would pose a risk of certain types of harm.
Government agencies largely honored the spirit of disclosure embodied in the Reno memorandum. Thus, when Attorney General John Ashcroft issued his own memorandum in 2001, eliminating the presumption of disclosure and going back to the Reagan/Bush I approach, the result was a marked decrease in the percentage of requested information that was released in full.
Attorney General Eric Holder’s FOIA guidelines, issued pursuant to the President’s order, reinstate the Reno policy. They encourage discretionary disclosure even in situations where an agency legally could withhold information. Moreover, like the Reno guidelines, they allow the Justice Department to defend withholdings in court only when the law requires withholding or when disclosure poses a reasonably foreseeable risk of harm. The new policy applies not just prospectively but also to pending litigation “where there is a substantial likelihood” that the new rules “would result in a material disclosure of additional information.”
While the new guidelines could lead to a significant increase in government transparency, much depends on their faithful implementation. To date, the guidelines have led to mixed results in pending FOIA cases. Many litigants and judges have requested that the government reconsider its position; in some instances, the government has agreed to stay the case while it considers the request, but in others, it has been less open to committing publicly to reconsideration. The actual effect of the guidelines on pending cases thus remains to be seen.
How the presumption of disclosure will play out in national security cases is another unknown. Much of the information in the public sphere about post-9/11 counter-terrorism policies was procured through FOIA requests made by attorneys, journalists, and open government advocates. In theory, the guidelines could result in greater disclosure of such information. In practice, however, the government may be more inclined to assert the risk of harm when such records are requested, resulting in minimal change from the status quo. For now, the FOIA guidelines remain primarily a promise—albeit an encouraging one.
Conduct a thorough review of the government’s position in all pending cases; strictly apply presumption of disclosure to all requests.
Approach to public participation in policy-making
One of the most important aspects of open government is public participation in policy-making. President Obama’s “Transparency and Open Government” memorandum acknowledged the importance of this principle. It stated that “[p]ublic engagement enhances the Government’s effectiveness and improves the quality of its decisions,” and it ordered executive departments and agencies to “offer Americans increased opportunities to participate in policy-making and to provide the Government with the benefits of their collective expertise and wisdom.”
To a significant degree, the Obama administration has backed these words with action. The President’s memorandum of Transparency and Open Government tasked the government’s Chief Technology Officer with coordinating the development “by appropriate executive departments and agencies” of recommendations for an Open Government Directive to be issued by the Office of Management and Budget. As part of this process, the administration has solicited input, not only from the executive departments and agencies, but also from outside experts and advocates representing the public’s interest in transparency.
In the area of national security policy, however, this principle of open government is less in evidence (at least thus far). In two early executive orders, President Obama directed the creation of inter-agency task forces to study and make recommendations on (1) interrogation and rendition policies and (2) policy options for the disposition of detainees. The executive orders contained no provision for the public to be informed about, or to provide input on, the policy options being considered. To date, the task forces have not solicited public input and they have operated behind closed doors.
This inclusive approach to policy-making in the national security arena deserves particular recognition. Too often, national security policy is viewed as a matter that is off-limits to anyone outside of a particular corner of government. Yet public participation is just as important in forming national security policy as it is in other areas of governance. There are people outside the government with invaluable expertise in these matters; moreover, when members of the public are included in the discussion, the resulting policies are more likely to enjoy public support and to reflect our nation’s shared values. Indeed, one of the main reasons the Bush administration’s national security policies were so misguided is that they were developed in secret, with the input of only a few individuals in some cases.
While the Obama administration’s record in this area is overall quite good, there is room for improvement. For one thing, the administration’s outreach efforts have been inconsistent. In some cases, policy-makers have proceeded in an organized fashion to identify groups and individuals who should be consulted, while in other cases, the participation of outside groups and individuals has been more ad hoc. This may be a simple question of allocating adequate resources to the task.
Second, while the administration has sought to include a wide range of views among the groups and individuals it consults, there is no easy way for members of the public outside of those groups and individuals to provide input. Some governmental decisions require public notice and comment under the Administrative Procedure Act, a process that enables private citizens to express their views unmediated by organizations or representatives. In contexts where public notice and comment are not required, other vehicles for general public input may be established, such as the online “Citizen’s Briefing Book” created by the Obama transition team. Whatever the mechanism, on policies as fundamental and important as detention and interrogation, the general public should have some meaningful opportunity to weigh in. The administration should take steps to ensure that opportunity is provided.
Direct task forces on interrogation and detention policy should inform the public about how they are operating and solicit public input on policy options.
Support for the media’s right to report
Early indications suggest that the Obama administration will be far more respectful of the media’s right to report information about governmental matters than the Bush administration:
An important example of this respect for the right to report—one that bears directly on national security policy—is the President’s decision to allow members of the press to cover the honor guard ceremonies at Dover Air Force Base that mark the return of military casualties. In the lead-up to the Gulf War, then-Secretary of Defense Dick Cheney instituted a ban on such coverage, which remained in place under the Clinton and Bush II administrations. In February, Secretary of Defense Robert Gates announced that press coverage of returning casualties would be allowed with the consent of the fallen soldiers’ families.
The significance of this change in policy is far greater than it may seem at first blush. Our government has chosen to conduct its fight against terrorism in part through the mechanism of war. Wars cannot—and arguably should not—be conducted without public support, and public support for wars may depend in part on their cost in American lives. As Hugh Shelton, former Chairman of the Joint Chiefs of Staff, has explained, the decision whether to go to war must take into account whether “the American public is prepared for the sight of our most precious resource coming home in flag-draped caskets into Dover Air Force Base in Delaware.”
When that sight is withheld from the American public, and the casualties of war reduced to impersonal statistics on a printed page, the public is denied a unique and powerful indicator of the true cost of the war. By allowing Americans to see the returning caskets, the Obama administration has given the American people information that may help them understand and assess the war our government is conducting.
Another encouraging development is the administration’s support for a federal media shield law that would limit courts’ ability to subpoena confidential information, such as the identity of sources, from reporters. The issue of journalists’ ability to protect their sources came to a head in 2005 when New York Times reporter Judith Miller went to jail for weeks rather than testify in a case regarding the leaking of CIA agent Valerie Plame’s identity. The Newspaper Association for America reports that Miller is one of five reporters who have been sent to jail since 2001 for refusing to name sources in federal court. In 2006, close to 70 subpoenas were issued seeking confidential information from reporters, according to the association.
As a Senator, Obama cosponsored a media shield bill. More than 60 major news organizations and media companies expressed their support for the bill, arguing that the free flow of information to the public is diminished when potential sources know that reporters could be forced to disclose their identities. The Bush administration, however, vigorously opposed the idea and worked to defeat the legislation, which was filibustered by Republicans in the Senate.
At his confirmation hearing, Attorney General Holder stated that he was “in favor of the concept of such a law.” He added, however, that he would “want to ensure . . . that we would still have the capacity to protect the national security and to prosecute any leaks of intelligence information that might occur.” He did not offer any specifics about how to do that, stating that he needed time to “become more familiar with the law.”
The media shield law, in both concept and practice, is not without its complications, the details of which go beyond the scope of this report. Nonetheless, the administration’s support for legislation intended to enhance the media’s ability to report is heartening. A key point going forward will be how the administration approaches the national security exception—an exception that could, in the words of one media attorney, “swallow the privilege.” Both the current House bill, which passed in March, and the Senate version allow courts to compel reporters’ testimony to prevent harm to national security regardless of whether that harm is imminent. That would allow courts to compel testimony on overly speculative grounds, such as long-term harm to policy goals. The administration should work with Congress to craft a more narrowly tailored exception.
Support a carefully tailored national security exception to the media shield law.