Transparency in the First 100 Days: A Report Card

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Government transparency is vital to a free and well-functioning democracy, and it is particularly so in the area of national security policies. History shows that these 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 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 the 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.” His commitment to transparency is heartening—but promises and action are two different things. If we are to protect our national security and our liberties, we must hold President Obama to his commitment: We must periodically take stock of his administration’s performance, acknowledge and commend those actions that enhance government transparency, and insist on a correction of course when transparency is diminished. This report card is an effort to do just that.

Report Card

OPEN GOVERNMENT
SUBJECT	ADMINISTRATION ACTION	RECOMMENDATIONS	GRADE
"Day One” emphasis on transparency	Signaled commitment to transparency by issuing transparency orders and statements on “Day One”	Back up the promises with action—particularly in matters pertaining to civil liberties and national security
Freedom of Information Act	Issued order/memorandum restoring presumption of disclosure under FOIA; agreed to stay some cases, not others	Conduct thorough review of all pending cases; strictly apply presumption of disclosure to all requests
Public access to policy-making	Has invited and/or accepted input by organizations and advocates on important policy issues, including detention and interrogation policy	Ensure that all task forces and policy-makers engage in systemic outreach to interested groups and individuals; create vehicles for broader public input into major policy decisions
Media’s right to report	Opened Dover Air Force Base to reporters; stated qualified support for media shield law	Support a carefully tailored national security exception to the media shield law
PRES. RECORD & COMMUNICATIONS
SUBJECT	ADMINISTRATION ACTION	RECOMMENDATIONS	GRADE
Litigation over White House e-mails	Opened settlement talks on litigation regarding e-mails “lost” by Bush White House	Agree to a process for reconstructing and releasing the e-mails and ensuring proper retention of electronic records going forward
Litigation over congressional subpoenas for White House aides’ testimony	Facilitated settlement allowing Congress to obtain information from Bush White House aides Karl Rove and Harriet Miers	Reject Bush’s claim of absolute testimonial immunity; support the Brennan Center’s proposal for an Executive Privilege Codification Act
Executive order on Presidential Records Act	Issued executive order limiting former presidents’ ability to block public access to records	Carefully assess privilege claims by former presidents and limit public access to presidential records only when strictly necessary
Transparency of President’s schedule	Has added private meetings and written read-outs of calls to public schedule	Develop and disclose criteria for placing items on public schedule; make full public schedule available on White House website
SECRET LAW
SUBJECT	ADMINISTRATION ACTION	RECOMMENDATIONS	GRADE
OLC opinions	Released several key Bush-era OLC opinions; others pending	Provide an exhaustive list of unreleased OLC memoranda and promptly release them, redacting only properly classified information
Nomination of Dawn Johnson	Nominated champion of OLC transparency to head the office	Strongly defend Johnsen’s nomination
Transparency of signing statements	Identified statutory provisions and objections to those provisions with relative specificity	Specify every objectionable statutory provision, or, even better, cease reliance on this type of signing statement
ACCOUNTABILITY
SUBJECT	ADMINISTRATION ACTION	RECOMMENDATIONS	GRADE
Use of state secrets privilege	Invoked overbroad claims of privilege in all three relevant cases	File supplemental briefs withdrawing overbroad privilege claims; support the State Secrets Protection Act
Defense of immunity for telecom companies	Is defending immunity for telecom companies that assisted in Bush’s warrantless wiretapping program	Promote and support legislation overriding the statutory immunity provision and/or withdraw Attorney General Mukasey’s certification
Position on independent commission of inquiry	Opposes a commission of inquiry to examine torture and other counter-terrorism abuses	Support the Brennan Center’s commission proposal and use the influence of the Office of the President to gain support in Congress and the public
Signing statement on whistleblower protection	Declared authority to disregard statute providing protection for executive branch whistleblowers	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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A Note on Methodology & Using the Report Card

What the Report Card covers – The purpose of this report card is to evaluate the Obama administration’s record of transparency in matters bearing on national security policy. We therefore address actions specific to that area, such as claims of “state secrets privilege” or the release of legal memoranda regarding interrogation techniques. We also address actions that are more general in their scope if they could affect national security matters. For example, restoring a presumption of disclosure under the Freedom of Information Act (FOIA) may enhance the public’s ability to obtain unclassified documents relating to counter-terrorism policies. We do not address transparency issues that are specific to other issues, such as the operation of the Troubled Asset Relief Program.

Click here to download entire Report as PDF.

Grading – Almost any action at the 100-day point could be subject to future revision; but assigning a grade of “incomplete” to every item would defeat the purpose of assessing the administration’s performance thus far. Our solution was a tripartite system:

• For actions that already have produced a concrete effect, we assigned a letter grade, even if future events may change the “final” grade.
• For actions that have symbolic or promissory value, but require follow-up by the administration in order to have a concrete effect, we graded the symbolic/promissory action—but added an asterisk (*).
• For actions whose value depends entirely on future action by the administration, we assigned a designation of “Incomplete.”

Using the Above Report Card – The Report Card above represents only a summary of the thorough analysis undertaken by the Brennan Center when developing a grade. Click on a subject heading or subject to read the complete analysis or use the links provided below to navigate through the four subject headings.

Open Government | Presidential Records | Secret Law | Accountability

Conclusion

At the 100-day mark of his administration, there already have been several tests of President Obama’s promise to make his administration one of the most transparent in history. This report card shows that the administration’s performance on these tests has run the gamut from excellent to poor. The reality of the administration’s conduct has on occasion matched the rhetoric, but on other occasions has fallen far short.

The report card also reveals notable patterns. While the administration’s performance has been varied overall, it has been quite consistent within each category of action. Thus, when it comes to open government (facilitating public access to records and participation in government), the administration’s commitment has been admirably strong across the board, although much depends on future implementation. In the categories of presidential records/communications and secret law, too, the administration’s actions to date warrant consistently high marks. But when it comes to transparency in situations where accountability is sought for governmental wrongdoing, the President’s record has been weak in every instance.

Traditionally, a report card compiles the grades from all the tests and gives a total score. In tallying the total, however, the grader may wish to assign different weights to different tests—viewing some as “pop quizzes” and others as “mid-term exams.” In this case, we think it more appropriate to leave this process to the reader, as the total grade will vary greatly depending on what factors he or she considers most important. For example:

• Some readers might feel that more general steps in the direction of openness (such as re-establishing the presumption of disclosure under FOIA) are only weak indicators of what the Obama administration will do on national security matters. If one assigns heavier weight to those actions that relate specifically to national security information (release of Bush-era OLC opinions, overbroad claims of state secrets privilege, support for telecom company immunity, and opposition to a commission of inquiry), the total grade will be significantly lower than if equal weigh is assigned to both categories.
• Other readers might feel that the most important distinction, for weighting purposes, is whether the action will reveal information in “real time” about this administration, or whether it opens the books on past administrations. These readers might be less interested in the administration’s disclosure-friendly interpretation of the Presidential Records Act, the release of Bush-era OLC opinions, the attempts to shut down lawsuits regarding Bush-era practices, and the President’s opposition to a commission of inquiry. De-emphasizing those actions would lead to a slightly higher total grade.
• Still other readers might discount actions, like the FOIA guidelines or the executive order on the Presidential Records Act, whose effect is largely dependent on future implementation—those actions that received an asterisk next to the grade. Giving less weight to these actions would lower the total grade.

Additional factors that might affect the analysis include what types of information the reader considers the most important for a well-functioning democracy and how immediate or widespread the effect of non-disclosure. Indeed, the number of different ways to weigh these acts is probably as great as the number of readers considering them.

A total grade seemed inappropriate for another reason. It suggests finality, when in fact many of the most important tests of President Obama’s commitment to transparency are yet to come. Several of the actions listed on this report card are graded as “incomplete” or have an asterisk next to the grade because their effect will depend on future follow-up by the administration. Even more significant, several critical transparency issues are missing from this report card altogether because the administration has yet to take any action on them. For example, one of the greatest hurdles to transparency on national security matters is the problem of over-classification—a problem noted by the Brennan Center and acknowledged by experts and advocates of all political stripes. President Obama almost certainly will provide new guidance on classification. That guidance has the potential to affect transparency in national security matters more than any other action listed in this report card.

Which brings us to a final point: Every grade listed in this report card is an interim grade, as President Obama could still change course on any of these matters. The purpose of interim grades is not to pass judgment, but to identify areas where improvement is needed with an eye toward achieving a better final result. We have attempted to identify those areas and make constructive recommendations for change. If the right improvements are made, history may yet regard the Obama administration as the most transparent in modern history—and our democracy will be better and stronger as a result.

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