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Secrecy in the So-Called "Most Transparent" Administration in US History

BY Jason Ross Arnold | Wednesday, March 18 2015

How much has changed, really? (Eric Draper/White House)

An abridged version of this article originally appeared on The Washington Post's Monkey Cage blog.

We used to hear more from President Obama about his aspirations to lead the “most transparent” administration in American history. From the 2008 campaign through early 2013, administration officials – including the big guy – continued to beat the most transparent drum, promising the (clear) sky, and insisting they had already delivered, or were on the cusp. The White House has since toned down the lofty, boastful messaging. Perhaps they were chastened by all of the bipartisan criticism and late-night television mockery of the administration’s actions in light of its claims. But Obama’s pledge to create an “unprecedented level of openness” still stands proudly at the top of the White House’s open government webpage, a sign that it remains a priority (or a monument whose removal would be too embarrassing a concession). Sunshine week provides a perfect opportunity to evaluate the record: where between most transparent and “most closed, control-freak” should we place Obama-Biden?

Is There Any Truth to the “Most Transparent” Posturing?

The administration deserves some credit. It revoked President George W. Bush’s pro-secrecy changes to the Presidential Records Act. It unveiled the Open Government Directive which pushed agencies to proactively publish data and develop public feedback mechanisms. It launched the now 64-country Open Government Partnership, which promotes and institutionalizes open government norms.

The president also steered the government back toward the Clinton-era “maximum responsible disclosure” standard for Freedom of Information Act (FOIA) requests, after Bush’s Attorney General in 2001 pushed agencies in the other direction (i.e. toward more risk-averse decision-making). In particular, Obama and his Attorney General established a “presumption of disclosure” rule, in an attempt to lead agencies back towards the letter and spirit of FOIA.

Obama revived Clinton’s unprecedented declassification review programs, which Bush gutted in 2003. He also pushed the often resistant, but not quite autonomous, agencies to think twice before classifying information, which has indeed decreased classification rates to record lows (see page 85 of my book for why the time-series had to begin in 1989).

To be sure, Obama-Biden officials added to our ever-expanding catalog of absurdist overclassification tales, such as concealing 9/11 architect Khalid Shaikh Mohammed’s interest in vacuum cleaner design (before becoming an Al Qaeda, KSM trained to become a mechanical engineer). In this case, the gag order placed on KSM’s lawyer would prevail if we had a round-robin contest for farcical excessive secrecy: “It sounds ridiculous,” Jason Wright said, “but ... confirming or denying the very existence of a vacuum cleaner design, a Swiffer design, or even a design for a better hand towel would apparently expose the U.S. government and its citizens to exceptionally grave danger.”

However, we should not make generalizations about administrations’ secrecy records based on individual episodes.

Overall, the administration has taken several positive steps toward more open government, after attacking Bush-Cheney’s transgressions on the campaign trail, and after promising a better way. Blame for some of the lingering problems can be pinned on recalcitrant agencies in the giant federal bureaucracy. For instance, 55 of 101 independently audited agencies in 2013 still had not adopted Obama’s new FOIA standard. But the continuing excessive secrecy is not merely a function of more or less constant pro-secrecy forces, such as bureaucratic conservatism, agencies’ “sure power instinct,” interest group appeasement, and embarrassment avoidance. Those forces can sometimes be tamed (e.g. the FOIA standard), but probably not eradicated. Blame for the remaining portion of excessive secrecy comes from officials’ choices to ignore or circumvent their open government obligations and commitments. Obama did not make secrecy a virtue, a cornerstone of his governing ideology, like Bush and Cheney did, but he and his subordinates certainly made plenty of pro-secrecy choices that betrayed his pledges and directives. While the administration might still wind up as one of the better ones of the sunshine era, it will not serve as the model for the most transparent administration yet to come.

These Are Not Reflections of a Most Transparent Administration

The reversals and puzzling contradictions surfaced pretty quickly after the first inauguration. For instance, many cheered the administration when it announced in 2009 it would disclose details (names, dates) from the White House visitors log on a monthly basis. But the vaguely worded exceptions, including “particularly sensitive meetings,” invited trouble. Moreover, when White House officials wanted to keep meetings with certain lobbyists off the record, they met them at nearby cafes and townhouses, apparently with full approval from superiors. Then, when the charade became better known, officials fought against disclosure in court, arguing that the names and dates were immune to FOIA requests. It was not an auspicious start, but it previewed a pattern repeated across domains.

FACA Compliance

A related contradiction involved the administration’s proclaimed commitment to restore the battered Federal Advisory Committee Act (FACA), widely known as the “open meetings law.” This administration did not try to cynically sidestep FACA as frequently as some of its predecessors, but officials have indeed played some of the same law-dodging word games, such as calling private sector participants on the post-Newtown gun control task force “consultants” instead of “members.” That rhetorical gambit helped the administration conceal meeting records and member names, taking us another step back to era before FACA, when private interests could wield influence on advisory committees behind closed doors.

Senior officials have yet to use another FACA-defying tool used by their predecessors: running out the clock when citizens sue, by delaying judicial action while hurriedly completing an advisory committee’s work. But they have deployed other evasive tactics, including simply ignoring FACA, pretending it did not exist. Officials have also liberally utilized FACA’s court-validated loopholes, FOIA exemptions, and the classification stamp to close more than 60% of committee meetings to the public. That noble distinction is shared only by the Bush-Cheney administration.

Original Classification Rates Tell Only Part of the Story

The government discounts the importance of “derivative classification” activity, saying it merely involves “incorporating, paraphrasing, restating, or generating in new form information that is already classified and, therefore, are not considered new ‘secrets’.” Thus, we should think of derivative classifications as echoes of original ones. If that is true, we should treat the sharp, Himalayan ascent in the figure below as an empirical footnote. No worries!, says the government.

However, the data in the table below suggest – no, scream – that something is fishy about the government’s explanation:

That the CIA classified just four documents during 2009 might seem puzzling, possibly a typo. The following year’s ISOO report indicated the number was no aberration: the CIA officially classified just five documents in 2010. The Table clearly shows strange numbers for other agencies. The explanation – which leaves as many questions as answers – involves variation in agencies’ classification procedures. Each agency compiles a “security classification guide” (SCG), which becomes a “source document” for derivative classification decisions. But agencies’ SCGs vary widely in their level of detail. The CIA’s is exceptionally detailed, for example, which means it covers most of the agency’s classifiable information ex ante. Therefore, because of its SCG, the CIA makes very few original classification decisions, instead using the guide to derivatively classify most if its secrets. The State Department, by contrast, does not produce a very detailed SCG, which leads it to originate classified information comparatively more frequently, and derivatively classify information less frequently. So one analytical problem comes from inter-agency variation in SCGs. Another results from the fact that agencies can re-write their SCGs at their discretion, and the government does not publish data about that kind of variation. Thus, we cannot assume stability of SCGs from year to year.

Overall, over-time comparisons using aggregated agency data need to be taken with a grain of salt. Perhaps more important, the ISOO’s original classification data do not include the secrets generated by some of the government’s primary classifiers, such as the CIA. While many derivative classification decisions fall under the government’s definition, certainly not all do. The spike in derivative decisions under Obama-Biden thus should remain a concern, until the administration can offer a satisfactory explanation.

Secret Law

One of the big secrecy-related debates during the Bush-Cheney years involved what critics call “secret law.” Some assumed Republicans in that administration invented the use of binding, immunizing secret legal memos to tell officials about how to follow or flout laws. They didn’t. However, Obama entered office with an apparent commitment to halt the practice. He appointed outspoken critics of secret law. He then released some of the most controversial Bush-Cheney memos.

Then, again, came the reversal.

Approximately a year after the releases, we learned Obama’s lawyers penned a memo outlining why CIA agents could extrajudicially kill U.S. citizens affiliated with terrorist groups, following White House orders. When journalists asked for proof that, for instance, U.S. citizen Anwar Al-Aulaqi was an operational member of Al Qaeda and thus a fair target, as the government alleged, officials said they could not divulge the classified details. When outsiders asked to see only the legal reasoning inscribed in the memos, officials claimed those passages were also necessary secrets. When pressed to explain what had happened to constitutional due process rights, Attorney General Eric Holder famously argued that “due process’ and ‘judicial process’ are not one and the same.” All of this killing-citizens-with-drones-and-secret-legal-memos, remember, came during the presidency of a liberal Democratic Party leader and Nobel Peace Prize winner.

So did the news of secret interpretations of the Patriot Act. If not for the Snowden revelations, senators from the president’s party would probably still be warning Americans about a shadow Patriot Act. There are less known examples of Obama-era secret law, as well as cases of the Justice Department’s open willingness to use legal memos to assure executive branch officials that Congress sometimes acts in ways that “may be disregarded by Executive Branch agencies.” And although the administration appears to have used secret law less frequently than its predecessors, we will not be able to determine that for a while, given all of the deep secrecy.

Secrecy in the Courts

Based on his campaign pronouncements, any reasonably attentive voter might have concluded in 2008 that an Obama administration would limit or narrow executive branch assertions of the state secrets privilege (SSP) to keep classified information from court proceedings, or at least limit the practice of invoking the SSP to force dismissals of lawsuits brought against it. And once again, early initiatives suggested Obama would deliver. While counting SSP assertions across administration is rife with analytical problems, a careful review of the evidence shows Obama-Biden did not pursue a much different course than its immediate predecessors. One can find examples of a more restrained approach, but overall the admirable initiatives did not significantly change the way officials deployed the SSP. Not only that, but they offered their successors a useful new trick: riffing off the SSP to conceal unclassified information from trials, as they did against whistleblower Thomas Drake, by citing the Classified Information Procedures Act, as well as the National Security Agency Act of 1959. [On the separate issue of the administration’s use of “secret evidence,” see, for example, this.]

Surveillance and Whistleblowers: The Issues that Will Likely Define Obama’s Secrecy Legacy

Much of the debate in American politics about what constitutes necessary versus unnecessary secrets has been shaped by unauthorized disclosures. In the late 1960s and early 1970s, startling revelations about government secrets and lies, delivered to the public by Daniel Ellsberg, the Committee to Investigate the FBI, and Ramparts magazine (among others), intensified a vigorous democratic debate about secrecy, and led to major investigations and reforms. In the post-9/11 era, unauthorized disclosures by Edward Snowden, Chelsea (née Bradley) Manning, and others have provoked another potentially transformative debate. There is no room here to fairly analyze whether the secrecy in those cases was necessary or unnecessary. However, nearly everyone by now recognizes that this administration and its defenders have taken an uncompromising stance, insisting uniformly that the secrets in question were necessary ones. Many, many open government activists and information policy experts disagreed or demanded more evidence. So did the candidate from 2008 about the Bush-Cheney cases – although it’s difficult now to find evidence of that, as statements about whistleblowers and other issues disappear from old campaign websites quietly.

Not only that, this administration has prosecuted more leakers under the Espionage Act than all other administrations combined, with a ferocity that brings to mind the Nixon era. Although the increase might have resulted partly from the disaggregated decisions of prosecutors as well as improved technologies of detection, senior officials ultimately had the choice whether to prosecute leakers under the law targeting spies. Plus, the prosecutions and the exceptionally aggressive actions against journalists and self-identified whistleblowers have betrayed the administration’s open government, pro-whistleblowing rhetoric; and they will remain a part of the president’s information politics legacy for decades to come.

A Mixed Legacy at Best, but There Is Still Time

This short overview of Obama’s record left out too many things. We didn’t cover Justice Department efforts to effectively institutionalize lying in its responses to FOIA requests (and ensuing lawsuits) – an escalation of already evasive tactics, such as the so-called Glomar denial, which allows information officers to neither confirm nor deny the existence of records. We ignored the emerging scandal involving Hillary Clinton’s (and Chuck Hegel’s) email record – or lack thereof. We never got to the under-acknowledged problem of secret science, such as when the EPA twice suppressed proprietary information from scientific reports showing significant amounts of well water contamination resulting from natural gas drilling via hydraulic fracturing (“fracking”). Or when the administration’s response to the British Petroleum/Deepwater Horizon oil spill included OMB orders that government scientists not publicly share spill estimates, alleged speech restrictions on consulting scientists, and a journalistic no-fly zone. There are other examples, all puzzling in light of Obama’s promise to “guarantee scientific integrity throughout the executive branch” – or perhaps not given the record outlined above.

Blaming “the administration” for its evasions and compliance failures can easily devolve into blaming Obama for problems he did not personally cause (although doing so can be funny). The federal government is gigantic, filled with thousands of bureaucrats with discretion, who make countless decisions that never cross into the White House’s orbit. Even so, we cannot simply let senior officials off the hook for the problems caused by their underlings. Norms in American political culture rightly demand the public and private sector executives be held accountable for the failings of their organizations. Plus, the President could have made implementation of his initiatives a higher administrative priority, which would have had the benefit of preventing the many accusations of broken promises.

There is still time for the president to leave a legacy that tilts toward more transparent –“most transparent” on some dimensions, perhaps, but certainly not across the board. Congress also has an important role to play, starting with the FOIA amendment that nearly passed late last year. (So do voters, social movements, and organized interests.) New laws would help, but we already have some excellent open government laws. Now we just need officials who face the proper incentives to obediently follow the most charitable interpretations of them.

Jason Ross Arnold is an assistant professor of political science at Virginia Commonwealth University and the author of the new book Secrecy in the Sunshine Era: The Promise and Failures of U.S. Open Government Laws.