President Barack Obama’s administration will hand President-elect Donald Trump’s administration a system for secrecy, especially when it comes to concealing military and national security programs and policies, that is stronger than ever.
Eight years were spent by the Most Transparent Administration Ever™ refining this system. It succeeded marvelously because administration officials took actions that gave citizens the illusion of transparency as it transparently engaged in acts intended to protect government officials from accountability and scrutiny.
Part of this system involved doing the bare minimum when it came to the Freedom of Information Act, including frustrating momentum to reform the law. That included censoring or preventing a record number of files from disclosure under FOIA.
Another aspect involved litigation in federal courts to ensure documents and were not released—torture photos, “targeted killing” or drone documents, videos of force-feeding of prisoners at Guantanamo Bay military prison, etc.
An even more prominent facet was Obama’s policy toward leaks. The administration prosecuted more leakers or whistleblowers under the Espionage Act than all previous presidential administrations combined. It enabled parts of the government that moved to institute “insider threat” programs, which could have the effect of discouraging whistleblowers from coming forward to reveal corruption. The administration also infringed upon the press freedom of journalists involved in publishing stories based upon leaks.
Altogether, this secrecy regime aided the Obama administration as it further entrenched policies of permanent war, pioneered an assassination industrial-complex for executing terrorism suspects away from the battlefield, preserved powers of indefinite military detention, and shielded former government officials and military officers from prosecution for involvement in torture and other war crimes.
Fighting Transparency In Court
When the American Civil Liberties Union published a report [PDF] on the progress of the Obama administration on national security, civil liberties, and human rights in July 2010, it recalled, “Many of the Bush administration’s most controversial national security policies—the warrantless wiretapping program, the torture program, the rendition program—were conceived, developed, and authorized in secret.”
“The American public found out about these policies long after they were put into place, and after a great deal of damage had already been done. Too often, Americans had to rely on leaks to the news media, or litigation by public interest organizations, in order to find out about consequential national security policies that had been adopted in their name. Too often, national security policies that should have been subject to public debate were implemented secretly. And too often, this secrecy shielded government officials from accountability for decisions that violated the public’s trust and the law.”
Those same words could be used to describe the Obama administration. Policies, like the “targeted killing” program, were “conceived, developed, and authorized in secret.” The public had to rely on lawsuits or leaks to learn about national security policies “adopted in their name.” The largest contributions to the public’s understanding of military and national security operations came from the whistleblowing acts of United States Army whistleblower Chelsea Manning and NSA whistleblower Edward Snowden.
The ACLU filed a lawsuit in 2010 for files on the “legal and factual basis” for using predator drones to target and kill people overseas. The CIA would neither confirm nor deny the existence of a drone program. The Obama administration fought the ACLU, and on appeal, a court ruled the CIA could no longer deny the existence of the program. However, the administration won in April 2016 when a court ruled all documents could remain secret.
In 2011, the ACLU filed a request for documents on the extrajudicial killings of Anwar al-Awlaki, Abdulrahman al-Awlaki, his 16 year-old son, and Samir Khan, who were attacked in two separate drone strikes in Yemen. The Obama administration fought the ACLU. The ACLU won a victory when the government was forced to release a memo on the “legal justification” for killing Anwar al-Awlaki in 2014. But in December 2016, a court ruled no additional documents had to be released.
The Center for Constitutional Rights, along with the ACLU, sued for records on a deadly U.S. airstrike that took place on December 17, 2009, against the community of al Majalah in Yemen.
Forty-one civilian were killed, according to The Bureau of Investigative Journalism. Twenty-two children were killed. A dozen women were killed. Five of the women were pregnant. The Obama administration refused to confirm nor deny that the massacre took place, and no records have been released yet.
It engaged in a transparent act of secrecy by erasing civilian deaths from drone attacks. In July 2016, it released figures that suggested the CIA and U.S. military killed 64 to 116 “non-combatants.” This was preposterously low, and the administration was brazenly using this number as propaganda to convince Americans its attacks are “precise” and only “terrorists” are ever killed when targeted.
Additionally, CCR sought the disclosure of video and photos of Mohammed al Qahtani under the Freedom of Information Act (FOIA) so attorneys for al Qahtani could publicly confirm or deny whether they had viewed videotapes that show al Qahtani being tortured and abused at Guantanamo. The Obama administration fought the release of images, and a federal judge backed the administration, insisting it was “logical and plausible that extremists would utilize images of al-Qahtani (whether in native or manipulated formats) to incite anti-American sentiment.”
Reprieve, a legal charity, won a major victory when a federal judge ordered the Obama administration to release videos of their then-client, Abu Wa’el Dhiab, being force-fed at Guantanamo while he was on hunger strike to protest his detention. Sixteen U.S. media outlets asked the court to make the videos public. (Dhiab has since been released.)
The Obama administration appealed the decision in January 2016 to suppress the release of videos.
Eric Lewis, an attorney and chair of Reprieve’s U.S. chapter, said, “It is wrong to hide behind national security concerns when the government wants to hide its mistaken actions from public view. Our national security requires the release of these tapes, and accountability for the cruel treatment imposed on men trying to call attention to their endless and lawless detention without trial.”
One of the most notorious acts of secrecy involved instructions to government lawyers to oppose the release of photos of detainee abuse and torture. Obama not only parroted the fear-mongering of the Pentagon by suggesting disclosure might endanger troops, but he also argued it could have a “chilling effect” on investigations into detainee abuse. This is, in retrospect, laughable because next to nobody was ever prosecuted for torture.
The ACLU kept pushing for the release of these photos and had another shot in 2016 because a federal judge did not believe the government properly justified keeping each torture photo secret. However, the administration invoked the Islamic State and re-classified nearly two thousand photos in order to make it more difficult for a court to force their release. Only 200 indistinguishable photos of detainee abuse, including close-ups showing cuts, bruises, swelling, etc, saw the light of day.
Presiding Over a Growing Body Of Secret Law
Also, the Obama administration presided over growing body of secret law. Secret interpretations of the Patriot Act remain concealed. The Obama administration fought against the release of Foreign Intelligence Surveillance Court decisions until Snowden released documents. The Justice Department refused to reveal legal opinions on whether it has the authority to use GPS tracking. A “cyber security” policy directive that purportedly wrestled with whether the U.S. government can engage in cyber warfare was withheld from the public.
As the Brennan Center for Justice highlighted in a 2016 report, there are “at least 74 opinions, memoranda, and letters issued between 2002 and 2009 on several of the most important legal topics arising after 9/11 – including detention, interrogation, intelligence activities and intelligence-sharing, the United States’ response to terrorism, and the law of armed conflict,” which Obama did not release.
“The majority of significant pre-Snowden FISA case law remains secret,” according to the Brennan Center. There are 807 secret international agreements with foreign nation that relate to the “security and economic well-being of Americans,” but Obama invoked “national security” to keep them secret. And then, there are national security directives, which presidents issue. Obama has kept two-thirds of the directives he issued secret and declined to release around half of the directives issued by Bush and Clinton.
A Senate Select Committee On Intelligence report on the CIA’s rendition, detention, and interrogation program, which detailed torture, was produced while Obama was president. An executive summary shedding some transparency was released to the public, but the 6,300-page report remains secret. Obama made it part of his presidential papers so it may be released within the next decade, however, now is when it could have the most impact by helping to deter the Trump administration from reinstating policies of torture.
Obama’s Unprecedented War On Leaks, Including A Crackdown On Whistleblowers
A law which the U.S. government used in the early 1900s to target communists, socialists, and other left-wing activists, the Espionage Act of 1917, was wholly embraced by the Justice Department as a tool to prosecute leakers as if they were spies.
It used the law to prosecute former CIA officer John Kiriakou, who served a 30-month jail sentence for providing the name of someone involved in the CIA’s rendition, detention & interrogation program to a reporter. It pursued former NSA employee Thomas Drake, who blew the whistle on fraud, waste, and abuse at the NSA. It put former FBI linguist Shamai Leibowitz in prison for twenty months for providing a “blogger” documents on a possible Israeli strike on Iran.
With the Espionage Act, the administration investigated, prosecuted, and jailed former State Department arms expert Stephen Kim for sharing information with Fox News reporter James Rosen on how North Korea might respond to criticism of its nuclear program. It continued an investigation into Justice Department lawyer, Thomas Tamm, who provided details on warrantless wiretapping under President George W. Bush’s administration to Eric Lichtblau of The New York Times, until finally dropping the case in 2011. And, it prosecuted and jailed former CIA officer Jeffrey Sterling for 42 months. Sterling was charged with providing information to New York Times reporter James Risen on a botched CIA operation in Iran.
The Obama administration backed an innovative and relentless prosecution against Chelsea Manning, who released over a half million documents to WikiLeaks that included revelations of war crimes and diplomatic misconduct.
Obama showed mercy to Manning in his final days in office by commuting her sentence, but that did not change the impact of what his administration did. His policies played a direct role in convincing Edward Snowden it was best to flee the United States and reveal abusive and unconstitutional surveillance programs to journalists from a hotel in Hong Kong. He is now exiled in Russia because of the administration’s war on whistleblowers.
To respond to Manning’s disclosures to WikiLeaks, the Obama administration adopted an “insider threat” program that Marisa Taylor and Jonathan Landay of McClatchy Newspapers detailed as an “unprecedented initiative” that “extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration, and the Education and Agriculture departments. It emphasizes leaks of classified material but catchall definitions of ‘insider threat’ give agencies latitude to pursue and penalize a range of other conduct.”
“Millions of federal employees and contractors,” Taylor and Landay reported, “must watch for ‘high-risk persons or behaviors’ among co-workers and could face penalties, including criminal charges, for failing to report them.” And, “Leaks to the media are equated with espionage.” One Defense Department strategy document from June 1, 2012, stated, “Leaking is tantamount to aiding the enemies of the United States.”
“Experts and current and former officials” that Taylor and Landay spoke to for the story suggested this program would likely “make it easier for the government to stifle the flow of unclassified and potentially vital information to the public, while creating toxic work environments poisoned by unfounded suspicions and spurious investigations of loyal Americans.”
Along with the expansion of the “insider threat” program, the Obama administration empaneled a grand jury to investigate WikiLeaks, which is a media organization that is not even based in the United States. It sought to uncover evidence so it could charge WikiLeaks editor-in-chief Julian Assange with crimes. It issued search warrants to Google and combed the files of personal email accounts of people associated with WikiLeaks.
Undermining Press Freedom
The Justice Department under Obama targeted Risen in the Sterling case and argued he did not have a right to claim reporters’ privilege. They tried to force him to reveal his sources. must divulge not only his sources of classified information but also for information “neither confidential or privileged.” Eventually, largely as a result of outcry from media institutions, the Justice Department backed off and managed to convince a jury to convict Sterling without Risen’s testimony.
As part of a leak investigation, the Justice Department outrageously obtained two months of telephone records on 20 phone lines at Associated Press offices. The lines were used by around 100 journalists and may have seriously jeopardized the ability of reporters to maintain the trust of sources, especially for stories on national security matters.
Journalists also continue to experience harassment at the border that undermines their press freedom.
The Committee to Protect Journalists warned, “Journalists traveling to the U.S. can face prolonged stops as well as searches that can risk the confidentiality of their sources. The ACOS Alliance, a coalition of news organizations, journalists, and press freedom groups that includes CPJ, are aware of at least seven instances in which journalists say U.S. border and customs agents stopped them for a prolonged period and asked to search their electronic devices.”
Border agents questioned journalist Isma’il Kushkush about his “reporting on refugees” and searched his devices. Like Kushkush said, “Do I want to interview a person or not if that interview could become problematic at the border? It’s concerning that I could become a source for law enforcement if they take my information and contacts.”
The Obama administration was either apathetic or indifferent to the concerns of journalists, and the ability of border patrol agents and airport security to rifle through the contents of reporters’ devices and interrogate them about their journalism is a practice the Trump administration will be able to wield to their advantage.
Certainly, the prospect of Trump looms large, but there will be a continuity to Trump’s administration that citizens will have to recognize if they expect to succeed in resisting Trump. From wars to drones to indefinite military detention to no accountability for torture to increasing secrecy while claiming to be transparent, Trump will not have to expand presidential powers too much in order to wield authority in ways that are hugely devastating to civil liberties and human rights.
Trump will also be able to hearken back to standards set by Obama when he needs to justify silencing whistleblowers, who may plunge his administration deep into scandals.
This was the final part of a five-part series on the Obama administration’s legacy. The first part examined the human cost of eight years of war under Obama. The second part examined the administration’s institutionalization of an assassination complex. The third part examined how Obama has left intact a regime that enables indefinite detention. The fourth part examined the lack of accountability for torture.