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Obama Administration Excludes National Security Policies from Commitment to Transparency

President Barack Obama meeting with senior advisors

A chief counselor for the White House’s Open Government Partnership spoke at a Sunshine Week event on Monday and declared, “President Obama understands our government’s obligation to serve the American people to the best of our ability. He has made clear that citizens deserve accountability, and the opportunity to participate in their government – and that this will make our government better.”

The statement from Lisa Ellman came during a week where the press, civil society organizations and United States citizens are celebrating open government and the public’s right to know. It stood in sharp contrast to what was outlined by human rights and counterterrorism investigator, United Nations Special Rapporteur Ben Emmerson. In a recent report, he mentioned the US government has adopted an “unjustifiably broad interpretation of the state secrets privilege” in US courts. The CIA’s secret detention, rendition and torture program of the Bush-era CIA, according to the European Court of Human Rights (EHCR) has adopted a concept of state secrets that “has often been invoked to obstruct the search for the truth.”

Secrecy, which obstructs the truth, has deprived individuals, particularly torture victims, of justice and accountability. A clear example is the case of Khaled El-Masri, who was kidnapped by the CIA as he tried to enter Macedonia. He was flown to Afghanistan “where he was detained in a secret CIA ‘black site’ known as the “Salt Pit” for over four months, during which time he was severely and repeatedly beaten.” The EHCR found Macedonia had been responsible for Masri’s “unlawful detention, enforced disappearance, torture and other ill-treatment, and for his transfer out of Macedonia to locations where he suffered further serious violations of his human rights. The court concluded, “The blanket invocation of state secrets privilege with reference to complete policies, such as the United States secret detention, interrogation and rendition program or third-party intelligence (under the policy of ‘originator control’) prevents effective investigation and renders the right to a remedy illusory.”

In publicly stated policy, President Barack Obama’s administration has sought to improve openness and transparency in government, however, there has been a wide gap between what values the Obama administration claims they are committed to upholding and what the administration does in practice. It also seems the Obama administration has increasingly allowed national security policy to be excluded from this commitment to openness and transparency.

During the event in which Ellman spoke, she stated:

The Obama Administration understands that when the rules of a society are transparent – when there’s a clear and advertised set of laws and regulations regarding how to start a business, what it takes to own property, how to go about getting a loan– that these are the things that make a society function well.  When the public has access to information on government budgets and processes, this is what allows citizens to engage and to improve how their governments function.  When officials are held accountable to their actions and citizens feel confident in the public system, this is what makes a nation prosper and grow. [emphasis added]

The “rules of society” should be transparent, but one cannot help but notice what Ellman describes all seems to apply to citizens wanting to start a small business. This is open government for consumers or private owners of property. This does not suggest an open government policy that gives citizens the ability to know if officials are upholding human rights and not corruptly maneuvering to get around adhering to the rule of law.

Even so, the Sunlight Foundation recently highlighted how the US continues to “keep some of its most important laws behind a paywall.” Many “public safety standards must be paid for before you can even know what they are, after being developed in partnership with private standards developing organizations (SDOs). This is accomplished through ‘incorporation by reference’, where public law refers the reader to a private booklet and says you have to do whatever the booklet says.” The Office of the Federal Register asked for comments on whether “private rules should be free to the public” in February 2012. Since then, there’s been no action.

FOIA & “National Security Exemptions”

Returning to national security policies and the agency operations of national security and intelligence agencies, the Associated Press has reported that, though the “Obama administration answered more requests from the public to see government records under the Freedom of Information Act last year,” more than ever it is now citing “legal exceptions to censor or withhold the material” in order to “protect national security and internal deliberations.”

Around 603,000 FOIA requests were submitted last year, about a five percent increase. According to the AP, “When the government withheld or censored records, it cited exceptions built into the law to avoid turning over materials more than 479,000 times, a roughly 22 percent increase over the previous year.” It cited “national security to withhold information at least 5,223 times—a jump from over 4,243 such cases in 2011 and 3,805 cases in Obama’s first year in office.” The CIA became “more secretive” and “nearly 60 percent of 3,586 requests for files were withheld or censored” (compared with 49 percent in 2011).

The following agencies invoked national security exceptions: “The Pentagon, Director of National Intelligence, NASA, Office of Management and Budget, Federal Deposit Insurance Corporation, Federal Communications Commission and the Departments of Agriculture, Commerce, Energy, Homeland Security, Justice, State, Transportation, Treasury and Veterans Affairs.”

Remarkably, the AP mentioned it “could not determine whether the administration was abusing the national security exemption or whether the public was asking for more documents about sensitive subjects.” This shows there are very little ways for a citizen to prove the government is abusing or manipulating the FOIA process. In courts, a citizen or group (like the American Civil Liberties Union) can sue for access to documents or records they believe should be available to the public, but a judge typically takes the government’s invoking of so-called national security seriously and will rule in favor of the government.

The Center for Effective Government (CEG) points out in its report on Obama’s transparency record that over-classification and declassification issues have only persisted. It also criticizes the administration for allowing agencies to have secret rules or legal interpretations that the public is not allowed to know.

Secret Law

The Obama administration has presided over a growing body of secret law. Keeping records showing the legal basis for placing a suspected terrorist on a “kill list” has been defended in court in a FOIA lawsuit advanced by the ACLU. Secret interpretations of the Patriot Act to grant it even more expansive authority to conduct surveillance has been concealed by the administration. The Obama administration has refused to support releasing FISA court rulings at least in part or in some other form, which would bring some modicum of transparency to warrantless surveillance. The Justice Department’s legal opinions on when it has the authority to use GPS tracking were almost entirely censored from documents provided to the ACLU in response to a FOIA request. And Obama issued “cybersecurity” policy directive that purportedly wrestled with when the US government can and cannot engage in cyber warfare, which remains classified.

President George W. Bush issued sixty-six national security directives. At least thirty of them are still classified. Obama has issued twenty directives. Only five of them are public.

Steven Aftergood of Secrecy News has urged Obama to release a “summary account” of each of the national security directives Bush signed, which remain secret:

…Of the 54 National Security Presidential Directives issued by the (George W.) Bush Administration to date, the titles of only about half have been publicly identified. There is descriptive material or actual text in the public domain for only about a third. In other words, there are dozens of undisclosed Presidential directives that define U.S. national security policy and task government agencies, but whose substance is unknown either to the public or, as a rule, to Congress…

Whistleblowers & Prosecutions of “Leakers”

Ellman touted the signing of the Whistleblower Protection Enhancement Act last year and also declared, “When it was clear that Congress would not provide protections for intelligence community whistleblowers, the President took executive action, issuing a landmark directive that extended whistleblower protections to the intelligence and national security communities for the first time.”

The directive, however, contained no “legal enforceability” or mechanism for whistleblowers to challenge the decision of any national security or intelligence agency to fire them in court. Stephen M. Kohn, executive director of the National Whistleblowers Center, pointed out, “The Directive fails to provide whistleblowers with any new enforceable legal rights. In fact, the Directive specifically states that it does not ‘create any right or benefit’ for whistleblowers. This section renders the Directive toothless. We are concerned that national security employees may think that this Directive gives them some much-needed protections when it does not.”

This toothless measure came in October 2012 just less than a month before Election Day. Essentially, this was Obama pushing the reset button on his administration’s record of allowing or even championing the zealous pursuit of national security whistleblowers. It also was a cop-out or slickly deceptive maneuver because Congress had passed a whistleblower protection bill that excluded national security or intelligence agency whistleblowers. According to unnamed House aides, the exclusion was coordinated between both Democratic and Republican Party leaders in the House and with the Senate and White House. They decided the language “should not be included in the bill” because they did not have the political will to sort out how to protect national security secrets and also afford intelligence officials protection.

Moreover, as the public has become increasingly critical of its failure to take the kind of actions that should be expected from an administration that prides itself in being what it considers the “most transparent and ethical administration ever in the United States,” it has mentioned transparency and open government policies even less. This decline has coincided with a distancing from even the most minor commitments or pledges of transparency.

In conclusion, a culture of secrecy pervades intelligence agencies and government is filled with sycophantic bureaucrats indoctrinated to serve the national security state. Obama has no intention of challenging the secrecy culture in intelligence agencies, which creates a work environment that enables corruption. These agencies do not want whistleblowers talking anymore than Obama wants people from his White House talking. The agencies and Obama do not want to have to address corruption because it interrupts the continuity of government or it undermines the operations of an ever-expanding Surveillance State.

The result is the Obama administration must manage expectations on transparency and openness because they know there is only so much that can be permitted before the truly corrupt inner workings are revealed—the kind of of inner workings that WikiLeaks and Bradley Manning shined a light on with the selection, disclosure and publication of secret government information. This is why the Obama administration has effectively allowed a war on WikiLeaks, a media organization dedicated to global transparency, to persist. It is why the Justice Department uses law as a sledgehammer to make examples of “leakers.” Offending codes of silence cannot be allowed.

Photo by Pete Souza released by the White House

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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."