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The Worst Administration on FOIA

(photo: Wikimedia Commons)

A consensus has emerged during the presidency of Barack Obama. His administration is increasingly regarded as the worst on issues related to freedom of information and transparency.

Today, Josh Gerstein of POLITICO has a story that gives voice to this emerging consensus, which more and more open government advocates hold despite the fact that the Obama Administration maintains it is committed to “openness.”

Gerstein’s story features a quote from a Washington-based lawyer “who’s been filing” Freedom of Information Act (FOIA) requests since 1978. The lawyer, Katherine Mayer, says, “Obama is the sixth administration that’s been in office since I’ve been doing Freedom of Information Act work. … It’s kind of shocking to me to say this, but of the six, this administration is the worst on FOIA issues. The worst. There’s just no question about it.”

The practices, which are undercutting Obama’s supposed commitment to open government, are highlighted by Gerstein: administration lawyers fight FOIA requests in agencies and in court; an “unprecedented wave of prosecutions of whistleblowers and alleged leakers,” which appears to be aimed at “blocking national security-related stories”; forcing a New York Times reporter to reveal his confidential sources; using confusing/inaccurate metrics to track “progress” on open government initiatives and stalling the “proposals of the chief FOIA ombudsman’s office to improve government-wide FOIA operations.”

This consensus has been forming for the past year or two. But, only now is it on the way to becoming official media consensus, which is particularly important. For example, ABC News‘ Jake Tapper asking White House press secretary Jay Carney about the administration’s prosecution of whistleblowers and alleged leakers along with a friend-of-the-court brief filed by media organizations defending Times reporter James Risen’s right to keep his sources confidential definitely appeared to signal media are beginning to accept and challenge this reality.

An ACLU report on government secrecy published in July 2011 examined how Obama’s commitment to open government was yielding “mixed results.” The report called the administration out for: embracing the Bush Administration tactic of using the overly broad “state secrets” claim to prevent the declassification or exposure of information; fighting court orders to release photos depicting abuse of detainees held in US custody and supporting legislation to retroactively exempt the photos from release under the Freedom of Information Act (FOIA); threatening to veto legislation to reform congressional notification procedures for covert actions; refusing to declassify information on Section 215 of the PATRIOT Act, a section believed to allow for the collection of information not relevant to espionage or terrorism investigations. The ACLU report particularly examined how his administration had gone after whistleblowers more than any other president in history.

It is not simply that the Obama Administration has gone after any and every person that leaks information. It is that it has gone after anyone who engages in leaking that is considered “bad” for the administration. As the ACLU report notes:

…Bob Woodward of the Washington Post obtained a leaked copy of a confidential military assessment of the war in Afghanistan that included General Stanley McChrystal’s opinion that more troops were necessary to avoid mission failure. The purpose of this leak was undoubtedly to manipulate the policy debate by putting public pressure on President Obama to comply with the commanding general’s preferred strategy…

Here’s one of the more recent examples of “good” leaking: on February 24, senior US officials spoke to the Washington Post about a top secret cable that features warnings from the US Ambassador to Afghanistan Ryan Crocker on the “persistence of enemy havens in Pakistan.” They selectively leaked information to help ramp up support for covert and military action in Pakistan and Afghanistan. And, there was no outcry. Few pointed out how senior US officials were being permitted to share information in a top secret diplomatic cable while the government was in the midst of prosecuting Pfc. Bradley Manning for allegedly leaking unclassified, secret and confidential cables.

Faced with the WikiLeaks phenomenon, the Obama Administration has not moved to accelerate the declassification of material that should not be classified, so it has more legitimacy when it goes after individuals who leak classified information. The Information Security Oversight Office (ISOO) says “the government made a record 76,795,945 classification decisions in 2010, an increase of more than 40% from 2009.” It also has chosen absurdity over common sense as a response to WikiLeaks.

Over 250,000 US diplomatic cables are currently public. They can be read by anyone at any moment. However, the administration does not wish to treat them as public. It maintains they are still classified. That is why the ACLU submitted a FOIA request for twenty-three specific diplomatic cables related to cases of interest.

Six months later, eleven of twenty-three were released. Parts of the cables were censored. That was no problem for the ACLU because WikiLeaks had released all of the cables uncensored. The ACLU could compare the uncensored version with the censored version and show the insanity of the government’s commitment to keeping contents of the cables “secret.”

Finally, the recent release of Stratfor emails by WikiLeaks adds another dimension to the administration’s reputation as the worst administration on FOIA. The release suggests there is a whole industry of private intelligence firms with access to individuals who are feeding them information secret and/or classified information. An FBI agent named James Casey tipped off Stratfor’s vice president of intelligence, Fred Burton, a former State Department employee, on the existence of a “sealed indictment” against Julian Assange. The head of an intelligence company knowingly shared classified information with Stratfor on Carlos the Jackal.

There appears to be a whole industry of professionals out there engaged in providing “risk management services” or intelligence to any companies or groups that want to know what the government is doing. The idea is that these services like Stratfor provide information so people can “plan ahead.” However, when WikiLeaks obtains classified information and publishes it (as a journalistic organization is permitted to do), it is not permissible to help citizens around the world “plan ahead” by giving them a glimpse at the corruption that may do great damage to peoples’ lives.

Moreover, Stratfor can profit off of peddling analyses containing nuggets of “classified information” while WikiLeaks is targeted for releasing information for free, which media organizations do all the time because it is typically protected under the First Amendment.

Coupled with the continuation and expansion of Bush Administration “war on terror” policies, like the assertion that it is legal to target and kill US citizens suspected of terrorism without charge or trial, the poor record on freedom of information is not something to shrug off. It is part of a conscious effort to convince Americans that government be permitted to operate in the dark because, in order to have national security, the government must be able to work in secret.

Freedom of information is why innocent Muslims now know that the NYPD was spying on their communities in areas all over the northeastern United States. If that is something that one agrees should not be allowed to go on without the public knowing, one must be appalled at the Obama Administration’s record on transparency because the NYPD’s operations are the kind of operations that motivate an administration to have and ignore such an awful record on transparency.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."