When candidate Barack Obama promised Americans the most transparent presidential administration ever, supporters cheered.
After all, secrecy had been one of the hallmarks of the George W. Bush administration, where even the vice president’s location was often “undisclosed.”
But if you had to find one headline that captures the spirit of the Obama administration’s efforts to make the actions of government more visible to citizens, it’s this one from a 31 March post at New American:
Obama Receives Transparency Award at Secret Meeting
Here’s the opener to Raven Clabough’s post:
On Monday President Obama received an award for transparency, which ironically was given to him during a closed, unannounced meeting. Bestowed upon the President from a group of transparency advocates, the ceremony took place in secret, even though — as of two weeks ago — it was supposed to be open to the press.
According to Politico, the meeting was “inexplicably postponed” and rescheduled without notice for Monday “without disclosing the meeting on [the President's] public schedule or letting photographers or print reporters into the room.”
Those present at the ceremony, which took place in the Oval Office, included Gary Bass of OMB Watch, Tom Blanton of the National Security Archive, Danielle Brian of the Project on Government Oversight, Lucy Dalgish of the Reporters Committee for Freedom of the Press, and Patrice McDermott of OpenTheGovernment.org.
So we decided to undertake a survey of the Obama administration’s record on transparency, and what we discovered wasn’t an exemplar of Hope™ and Change™, but rather a track record that reflects the typical back-room dealings of a run-of-the-mill Chicago machine politician.
It’s our longest post yet, a stunning record of a promise betrayed.
2009: HOPE followed by bad news
Transparency advocates welcome a new president
On 22 January 2009, two days after Obama’s inauguration, transparency advocates hailed what they believed would be the beginning of a new era of open governance.
First, this [PDF warning] from Transparency International-USA, which describes itself as an organization that “works at home and abroad to combat corruption and promote transparency and integrity in government, business and development assistance”:
Transparency International-USA (TI-USA) welcomes the strong and critically important signal sent by President Barack Obama’s declaration on his first day in office that “transparency and the rule of law will be the touchstones of this presidency”.
The new President’s commitments to impose stronger restrictions on the “revolving door” between government service and lobbying the government, and to increasing public access to information are laudable. They will help ensure greater accountability and restore public trust.
President Obama has consistently recognized the critical importance of financial transparency and committed to increasing it in the economic recovery package. . . Leading by example at home will strengthen the credibility and influence of the US abroad.
That same day, more adulation came from a post at The Media Institute by Barbara Cochran, president, Radio-Television News Directors Association, revealing the first hint of what was to come:
Supporters of open government could hardly have asked for a better beginning to the Obama administration, when, as one of his first acts, the new president declared “the beginning of a new era of openness in our country” and signed documents reversing the secrecy policies that had been a hallmark of the Bush administration.
“Transparency and the rule of law will be touchstones of this presidency,” President Obama said at a meeting with his senior staff on his first full day in the White House.
Unfortunately, that promising start was marred within hours when still and video photographers were left out of the news media pool that was hastily summoned to cover Obama’s second taking of the oath of office. The repeat performance was necessitated after Supreme Court Chief Justice John Roberts misspoke the words of the oath, which are prescribed in the Constitution, while administering the oath on Jan. 20.
The Radio-Television News Directors Association has joined with other media organizations and advocates of open government to seek more transparency from the new administration. Obama signaled his intentions in his Inaugural Address when he called on those in government to “do our business in the light of day – because only then can we restore the vital trust between a people and their government.”
The next major warning came two weeks later, in this 9 February announcement from the Center for Constitutional Rights, and organization “dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights”:
In response to the position Obama’s Justice Department took today in a key rendition case brought by the American Civil Liberties Union, Mohamed et al v. Jeppesen Dataplan, Inc., Center for Constitutional Rights (CCR) Executive Director Vincent Warren issued the following statement: “I could not be more disappointed: In its first real case, the Obama administration has chosen to continue the Bush administration’s policy of secrecy before justice despite all the uplifting rhetoric about transparency. The Bush administration invoked the State Secrets privilege more than any other administration in history to keep embarrassing cases out of court. The question is, when will Obama roll back the illegal expansion of executive power he has inherited?” CCR represents Canadian rendition victim Maher Arar, whose appeal before the full Second Circuit is pending.
A student weighs in
One of the most prescient warnings about things to come was posted by a student on 3 March 2009. Ned Resnikoff offered a spot-on critique of Obama’s backpedaling for Campus Progress:
President Obama has proved he’s no shining beacon of transparency. First he ignored his “sunlight before signing” pledge. Then the Obama administration moved to block efforts to recover missing Bush-era White House emails. The final straw was when the administration stuck to the Bush White House’s position in another court case and waffled on state secrets. The new justice department not only adhered to the previous administration’s dubious strategy, but did so even when Obama had sharply criticized that strategy during the campaign.
Despite his sharp denunciation of the Bush administration’s secrecy and abuse of power, it appears that President Obama has every intention of appropriating its tactics. His reversal on state secrets is a particularly disturbing example of this, and not just because it directly contradicts his campaign rhetoric. The state secrets privilege has long been a legal tool the executive branch could wield to block specific pieces of evidence from appearing in court if it believed said evidence posed a national security concern. But the Bush administration took this practice to an absurd level when it decided it should be able to get entire cases thrown out simply by asserting the privilege. Now, in Mohammed et al v Jeppesen, Obama’s legal team is using the same tactic to try and silence a lawsuit mounted by extraordinary rendition victims against the Boeing subsidiary which aided in their abduction.
Binyam Mohammed was abducted, transported to Guantanamo, and subjected to excruciating torture, up to and including genital mutilation. What makes this behavior so grievous is that in trying to get Mohammed et al v. Jeppesen dismissed, the White House is deliberately covering for the human rights abuses of the previous administration. It is unconscionable of President Obama’s administration to obstruct the justice that Mohammed seeks.
More bad news on Gitmo secrecy
From Amnesty International on 10 March 2009:
A US federal judge has ordered the administration of President Barack Obama to provide him with updated information on the detainees held by the USA in Bagram airbase in Afghanistan by 11 March. District Court Judge John Bates is considering whether the detainees may challenge their detention before courts in the USA.
Judge Bates asked the Bush administration in January 2009 to disclose the number of people being held in Bagram, how many of them were taken into custody outside of Afghanistan, and how many of them were Afghan nationals. The administration responded by classifying the key details as secret and redacted them from the unclassified version of the filing.
Judge Bates has now asked the Obama administration the same questions, noting that the details supplied to him by the government in January may now be out of date.
Figures released in late February by the International Committee of the Red Cross, the only organization with access to Bagram detainees, indicate that there were then about 550 detainees in the airbase. This was down from the figure of “about 615″ provided by US Secretary of Defense Robert Gates to the Senate Armed Services Committee a month earlier.
New detentions by US and allied forces in Afghanistan continue. According to reports by the American Forces Press Service, at least 120 “militants” were taken into custody during January and February 2009. It is not known how many, if any, have been or will be transferred to Bagram.
Amnesty International has written to the US administration urging it to inject some much needed transparency into the Bagram detention regime, including by making fully available to the public the information requested by District Court Judge John Bates.
Amnesty International has urged the new administration not to repeat its predecessor’s use of secrecy to conceal from the public its response to the judge. Transparency, essential to accountability and detainee protection, must be central to US detention policy. As President Obama has himself instructed his administration, “transparency promotes accountability”.
Then on 17 June, a better-known voice weighed in on Democracy Now!, where Glenn Greenwald had this to day:
I think the first thing to note is that the pledge to end the Bush-era secrecy fetish and to bring transparency was not an ancillary promise of the Obama campaign; it was really central to everything that he said he was going to do, because secrecy was really the linchpin of all of the abuses of the Bush administration.
And yet, beginning in, and almost immediately, which was in February, in early February, when the Obama administration went into a federal court in a case brought by five victims of the torture and rendition program against a subsidiary of Boeing, which shipped them around the world, the Obama administration went into court and said, in response to questions from the judge, that it was going to adopt exactly the same Bush administration position on the state secrets privilege, which was really the primary tool the Bush administration used to shield its activities from any kind of disclosure or even judicial review for illegality. It shocked the judges on the appeals panel they didn’t even try to hide it, and civil libertarians, as well.
Beginning with that point, it became clear that with regard to virtually every single secrecy power that the Bush administration, to such great controversy, used, the Obama administration was going to replicate. It then asserted the same secrecy theories in cases challenging the legality of warrantless eavesdropping, of cases brought against Bush officials for illegal spying.
Barry O and the banking crisis
While warrantless wiretapping and the treatment of folks from another country and faith may have worried some Americans, we’d venture that everyone was concerned about the nation’s deep financial crisis.
And here, too, Barry Obama was starting to look a lot like Dubya after just six months in office.
On July 21 2009, Los Angeles Times reporters Tom Hamburger and Peter Nicholas offered the first glimpse of things to come:
As the watchdog of the government’s massive bailout of the financial sector, Neil M. Barofsky had a simple question: What had the nation’s banks done with all their bailout money?
Can’t be answered, said the Treasury Department, because of the way banks move money internally. The department declined to put the question to the banks.
And so Barofsky started asking financial institutions himself, getting answers from more than 300 that had received federal bailout money and learning to what extent they had used the money to increase their lending, buy competitors or build their cash reserves.
The banking survey, and the refusal of Treasury officials to conduct it themselves, were revealed as Barofsky issued a stinging report Monday that complained of a lack of transparency in the Obama administration’s management of the giant financial services bailout program.
The report came as critics of the administration said that the White House has fallen short of its promises to run a more open government. Among other areas, the critics cite the president’s conduct of the healthcare debate, which has included closed-door White House meetings with powerful interest groups.
“You can’t ask the basic questions or have a debate about the fundamental policy questions without information,” Barofsky said in an interview.
Keeping the lid on White House visitors
The Reporters Committee for Freedom of the Press weighed in on Obama’s obessesive secrecy on 19 October:
Despite the Obama administration’s recent legal settlement to begin releasing White House visitor logs later this year, it has denied a different public interest group’s recent request for those same records in the meantime.
In denying a request by watchdog group Judicial Watch, the U.S. Secret Service, through the Department of Homeland Security, said that White House visitor logs fall under the Presidential Records Act and are not subject to disclosure under the Freedom of Information Act because they do not originate with a federal agency.
Last month, the Obama administration announced its plan to voluntarily publish White House visitor logs on its Web site beginning Dec. 31 in response to lawsuits for visitor logs brought by another government watchdog group. The records that were the subject of Judicial Watch’s request here — from Jan. 20, 2009 through Sept. 15, 2009 — will remain largely private.
“The Obama White House has yet to explain why visitor logs from its first eight months will be afforded special protection,” Judicial Watch said in its release. The Obama administration maintains it needs time to review the records for national security concerns.
The new discretionary policy to release the logs came as part of a FOIA lawsuit settlement with the watchdog group Citizens for Responsibility and Ethics in Washington. CREW initiated FOIA lawsuits in an effort to learn the names of health care and coal executives who met with Obama’s White House and and religious leaders who met with the Bush administration. As part of the settlement of four FOIA cases, the Obama administration agreed to release to CREW some specific names of White House visitors during its first eight months in office.
Judicial Watch, however, received a blanket denial to its request even though a federal court has ruled that visitor logs are subject to FOIA. In January, U.S. District Court Judge Royce C. Lamberth said the Secret Service must release the visitor logs to CREW. The administration dropped its subsequent appeal after reaching the settlement agreement with CREW.
Anne L. Weismann, chief counsel for CREW, explained that because the White House agreed to voluntarily release the records “we are still in disagreement as to the status. The White House continues to maintain that these are presidential records and we continue to maintain that they are not.”
2010: Another bad year
We’ll start with a complaint Robert McClure of InvestigateWest, a non-profit devoted to investigative reporting in the Pacific Northwest, who wrote on 15 March 2010 About his troubles in getting records from the Obama era Environmental Protection Agency:
The other day the Obama administration’s “Chief Information Officer” — or CIO… isn’t that clever? — was in Seattle decrying a “culture of faceless unaccountability” in government. His boast:
“This is part of the President’s agenda: to make sure we’re hardwiring transparency into the culture of the federal government.”
What a bunch of horse patootie.
At least that’s the way Vivek Kundra’s chest-beating looks from the trenches, for me and for other journalists trying to get information from the federal government, and particularly from the U.S. Environmental Protection Agency.
Then on 26 March 2010, Jack Goldsmith and Lawrence Lessig, professors at Harvard Law School, wrote a Washington Post op-ed blasting yet another Obama administration decision reached in secrecy:
The much-criticized cloak of secrecy that has surrounded the Obama administration’s negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken Wednesday. The leaked draft of ACTA belies the U.S. trade representative’s assertions that the agreement would not alter U.S. intellectual property law. And it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States.
These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a “congressional-executive” agreement. But the Obama administration has suggested it will adopt the pact as a “sole executive agreement” that requires only the president’s approval.
Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis and when Franklin Roosevelt recognized and settled expropriation claims with the Soviet Union.
These mostly secret negotiations have already violated the Obama administration’s pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.
Waiting til the cows come home
At least that seemed the case for folks trying to get information out of the U.S. Department of Agriculture, according to a 14 May 2010 post by David Carr of Environmental Working Group headlined“Obama’s USDA Less Transparent Than Bush’s.”
Here’s the intro:
The Environmental Working Group has worked hard to track the billions lavished on the wealthiest and largest farm operations in the country, in the hope that releasing the information would spur public demand for a sane and sensible agriculture policy. By following the money, we’ve exposed the grossly inequitable federal farm spending that enables the biggest subsidy recipients to maximize their haul of taxpayer dollars while skirting tepid regulations.
Our 2007 database used previously unavailable records to uncover nearly 500,000 individuals who had never been identified as farm subsidy recipients. Many had been shielded by their involvement in byzantine mazes of co-ops and corporate entity shell games. For example, the database revealed that Florida real estate developer Maurice Wilder, reportedly worth $500 million, was pulling in almost $1 million a year in farm subsidies for corn farms he owns in several states.
Unfortunately for our 2010 update, the data that provided such a revelatory account of just who receives the billions paid out in the maze of federal farm subsidy programs is no longer available to us. As The Associated Press’ Mary Clare Jalonick reported:
Data being made public Wednesday (May 5th) shows that the wealthiest farmers in the country are still receiving the bulk of government cash, despite claims from lawmakers that reforms in the bill would put more money in the hands of smaller farms. At the same time, a series of exemptions written into the bill has made it more difficult for the public to find out who is receiving what.
Chris Clayton, an editor at the DTN/Progressive Farmer Ag Policy news service, sums up in more detail (subscription required) the loss of transparency in the US Department of Agriculture’s latest farm program reporting.
Under the database released this week, it’s impossible to track how many individual people in Manhattan or Beverly Hills, Calif., collect payments. The real-estate developer who topped the recipient list in 2007 also doesn’t show up anywhere among the top recipients for farm payments.
The difference is that USDA won’t aggregate the payments collected and link them to an individual any longer. So now it’s unknown if someone may be collecting large amounts of program payments if that person collects the money through various partnerships or incorporations.
That’s because Congress changed the wording of the 1614 provision in the 2008 farm bill from USDA “shall” release such data to USDA “may” release such data. USDA has since decided not to release the information. According to USDA officials, the database can cost as much as $6.7 million to produce, and Congress did not appropriate money to compile the database.
USDA says that they’d like to be as transparent as the last time (in 2007, under the Bush administration), but that Congress didn’t give them $6.7 million to do so. Congress, however, did appropriate $50 million as part of the American Recovery and Reinvestment Act of 2009 for USDA computer upgrades that, in the agency’s own words, “is a priority modernization effort that will transform the way FSA (Farm Service Agency, the USDA division that cuts the checks) delivers farm program services and benefits to producers, farmers and ranchers.”
So USDA can’t find a few million to properly track the billions in taxpayer funds paid out in farm subsidies, but it has plenty of IT money to ensure that the largest and wealthiest operations in America get their checks as fast as possible. Sounds like we need to organize a transparency bake sale for USDA — and maybe a little refresher course on public access to government information.
Education beat reporters weigh in
On 7 June 2010,came a statement from the Association for Education in Journalism and Mass Communication reporting on their frustration with the administration:
In late May, President Barack Obama took the podium in front of the White House press corps in his first full, open-ended news conference in 10 months, a gap that exceeds the record set by his predecessor.
Obama’s lack of presidential press conferences and his general lack of transparency and accessibility to journalists during his administration are in sharp contrast to the platform on which he ran for president in 2008. During that campaign, Obama pledged a new era of openness.
Even the most logical of venues for answering questions from the press seem to be off-limits. In mid-May after he signed the Daniel Pearl Freedom of Press Act-a new law requiring the State Department to identify governments that restrict press freedoms-he refused to answer questions from reporters. “I’m not doing a press conference today,” he announced, according to a Reuters news story. And when he does allow reporters’ questions, attempts are made to control the proceeding. Last year the Wall Street Journal criticized the administration’s pre-screening of reporters who would be allowed to ask questions of the president.
The AEJMC is alarmed by restrictions to presidential coverage that at best curtail and at worst prevent U.S. citizens from understanding the critical issues in which this administration is involved.
The case of the missing records
On 7 September 2010, Nancy Scola of Personal Democracy Forum’s techPresident offered this:
Using a somewhat more compressed time frame than Californian Carl Malamud favors, the DC-based Sunlight Foundation used the example of a supposed $1.3 trillion worth of missing or wrong data in a federal spending database to make the argument that the 20-month-old Obama administration’s “drive for data transparency has stalled,” in the words of Sunlight executive director Ellen Miller, delivered this morning at Gov 2.0.
The USASpending.gov site has its roots, actually, to President Obama’s time in the Senate, when he and Oklahoma Republican Tom Coburn teamed up to sponsor a “Google for Government.” Miller is not too impressed. “It’s pretty impressive — looking,” burned Miller. “Unfortunately, its data is almost useless.” Sunlight’s tech team compared more than 10 million data rows from the spending site and other data sources, she said, and found the “broken reporting” of that $1.3 trillion in government spending, where some numbers were too big, some too small, and some just not there at all.” Sunlight’s launched a project called Clear Spending to follow up on the investigation.
“When we say things just don’t add up,” said Miller, “that’s indeed precisely what we mean.”
Miller had harsh words for some of the other flagship open data projects touted by the Obama administration. “Data.gov started with enormous promise,” she said, but “it’s still pretty mediocre as a data repository.” Recovery.gov, she said, “is little more than a qualified success.”
Miller sees discouraging trends in the inside baseball of White House staffing, pointing to the recent departures from the administration by OMB director Peter Orszag and White House ethics counsel Norm Eisen, both seen as open gov champions. “We’re beginning to worry that the [Obama] administration is more interested in style than substance.” she said.
And then there was the case of Deepwater Horizon
You remember that catastrophic BP Gulf of Mexico oil spill?
Well, it seems as though the Obama administration was doing everything in its power to keep Americans ignorant of the true extent of the disaster.
Here at esnl we suspect one reason may have been the close ties between Energy Secretary Steve Chu and BP, the company drilling the well. During his tenure here in Berkeley as head of Lawrence Berkeley National Laboratory, Chu played a leading role in landing the campus a $500 million “green energy” research program bankrolled by BP. And Chu brought in BP’s head scientist to play the same role in the DOE.
On 13 October 2010 Shaun Waterman weighed in for ISN Insights from the Center for Security Studies in Zurich on the black gold news blackout:
When President Obama established the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, he promised that it would leave no stone unturned in its quest for answers about the spill – and the government’s response.
In the four interim reports released last week, the commission showed it did not intend to spare the hand that established it.
Commission staff were blunt in their assessment that the administration had appeared either ineffective or dishonest about the scale of the disaster in the first few weeks.
“By initially underestimating the amount of oil flow and then, at the end of the summer, appearing to underestimate the amount of oil remaining in the Gulf, the federal government created the impression that it was either not fully competent to handle the spill or not fully candid with the American people about the scope of the problem,” states one of the reports.
Indeed, as the report reminds us, it was several days before officials acknowledged there was a spill at all.
“At this time there is no crude emanating from that wellhead at the ocean floor [. . .] there is no oil emanating from the riser either,” Coast Guard Rear Admiral Mary Landry, the official in charge of the government’s response team, told CBS News on April 23, three days after the explosion that sent the Deepwater Horizon to the bottom of the ocean and killed 11 of its crew.
But, as the report notes, “at the time of Admiral Landry’s statement, the riser had not yet been inspected.”
Indeed, that very same day, BP sent the US Coast Guard and the National Oceanographic and Atmospheric Administration (NOAA) its worst-case estimate of the spill volume – between 64,000 and 110,000 barrels per day. As the report notes, this became the baseline estimate that responders were using internally. It “appeared in both an internal Coast Guard Situation Report and on a dry-erase board in the NOAA Seattle war room.”
Yet for four more weeks the administration continued to declare in public that its best estimate of the rate of spill was only 5,000 barrels a day.
The real rate, of course, turned out to be much closer to the “worst case” figures, and the report says the government’s attitude to its own public estimates was “casual.”
Whistleblowers to the slammer
As we’ve noted before, the Obama administration has launched more criminal prosecutions of government whistleblowers than all previous administrations combined.
Hence this from Gilbert Mercier of News Junkie Post, written on 4 December 2010:
A bit more than two years ago, America and most of the world were infatuated by the new President-elect. Barack Obama was promising “integrity, transparency and accountability in government, politics and the law”. Pointing out that the Bush administration had been “one of the most secretive in US history”, President-elect Obama vowed to drastically increase government openness to citizens with a never seen before new level of transparency and accountability.
“The Bush administration has been one of the most secretive closed administration in America’s history. An Obama presidency will use cutting-edge technologies to reverse this dynamic, creating a new level of transparency, accountability and participation for America’s citizens,” said the site set up by the President-elect.
On the site, one of the ambitious and unfulfilled many promises of the new administration on ethics and government was to “conduct regulatory agency business in public”.
“Obama will require his appointees who lead the executive branch department and rule making agencies to conduct the significant business of the agency in public, so that any citizen can see these debates in person or watch them on the internet.”
An additional quote is even more damaging for the Obama administration “truth meter” standard, especially if it is put in the context of the key source of WikiLeaks: Private Bradley Manning. Manning is currently in military jail, and could face a sentence of up to 52-years. As matter of fact, President-elect Obama, back in November 2008, was pledging to “protect whistleblowers”.
“Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud and abuse of power in government,” said President-elect Obama on Change.gov
However, two years later, not only President Obama is not talking about “protecting whistle-blowers” any longer, but instead his administration is actively trying to prosecute WikiLeaks’ founder Julian Assange under an obscure law, dating from 1917, called the Espionage Act. The Obama administration thinks they have a case against Assange, under the Espionage Act, for publishing classified government documents. So not only President Obama doesn’t advocate transparency any more, but he has become an enemy of freedom of information and free speech. In effect, prosecuting WikiLeaks would have some very serious and damaging First Amendment implications, and doesn’t seem to be constitutional.
“We are deeply skeptical that prosecuting WikiLeaks would be constitutional. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting Wikileaks would be no different from prosecuting the media outlets that also published classified documents. If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA’s secret prisons or the government spying on innocent Americans,” said Hina Shamsi from the ACLU.
2011: The bad news rolls on
Which brings us to this year.
On 10 February 2011 Scott Amey, general counsel for the Project On Government Oversight (POGO) hit another exemplary Obama opacity move:
Today, the Obama Administration vacated a proposal to enhance contract transparency. The proposal would have amended Federal Acquisition Regulation to enable the online posting of contracts and task and delivery orders. POGO supported that proposal, which fell in line with Obama’s efforts in the Senate to improve public access to federal spending dollars.
One of those efforts, the Federal Funding Accountability and Transparency Act (FFATA)—co-sponsored by then-Senator Obama and Senator Tom Coburn (R-OK)—was signed by former President Bush on September 26, 2006. That legislation created the government’s database of contracts and grants, which totaled over $1.1 trillion in FY 2010. Incredibly, today’s decision would seem to place the Obama Administration in opposition to subsequent transparency legislation co-sponsored by then-Senator Obama, Senator Coburn, and others.
Despite many advances in technology, it appears that the President is now happy with the status quo and the ancient ways of gathering spending information, including FPDS-NG, Fedbizopps.gov, and the use of the Freedom of Information Act (FOIA). Those systems are dated and provide only summary data, and FOIA is so slow that a long-term contract can run its course prior to a requestor receiving a copy of the FOIAed contract.
The very next day, Gary Therkildsen of OMB Watch followed up:
The Obama administration might be reducing contract spending, but don’t expect the contracts the government signs to show up online anytime soon. Withdrawing a proposal made last May, the administration quietly announced yesterday that it’s abandoning what has turned out to be a tepid examination of posting federal contracts online.
Posting contracts online fit perfectly within President Obama’s now-famous Transparency and Open Government initiative; indeed, the May notice mentioned this very fact as justification for the proposal.
It seems, however, that the Office of Management and Budget (OMB) has been listening to the private sector’s outlandish complaints about potentially releasing proprietary information.
Now, as far as the budget office is concerned, “… existing acquisition systems … provide certain information on Government [sic] contracts that is readily available …,” including the Federal Procurement Data System – Next Generation (FPDS-NG), Fedbizopps.gov, and the use of the Freedom of Information Act (FOIA).
Journalists weigh in once again
On 14 March, the Associated Press offered an in-depth look at the Obama administration’s dismal handling of a favorite journalist’s tool for exploring the operations of government, the Freedom of Information Act:
Two years into its pledge to improve government transparency, the Obama administration took action on fewer requests for federal records from citizens, journalists, companies and others last year even as significantly more people asked for information. The administration disclosed at least some of what people wanted at about the same rate as the previous year.
People requested information 544,360 times last year under the U.S. Freedom of Information Act from the 35 largest agencies, up nearly 41,000 more than the previous year, according to an analysis by The Associated Press of new federal data. But the government responded to nearly 12,400 fewer requests.
The administration refused to release any sought-after materials in more than 1-in-3 information requests, including cases when it couldn’t find records, a person refused to pay for copies or the request was determined to be improper under the law. It refused more often to quickly consider information requests about subjects described as urgent or especially newsworthy. And nearly half the agencies that AP examined took longer – weeks more, in some cases – to give out records last year than during the previous year.
The government’s responsiveness under the Freedom of Information Act is widely considered a barometer of how transparent federal offices are. The AP’s analysis comes a day before a Senate Judiciary Committee hearing examining the Obama administration’s progress.
And on 1 April, came this from Society of Professional Journalists President Hagit Limor and Charles Ornstein, senior reporter at ProPublica and president of the Association of Health Care Journalists:
The day after his inauguration, President Obama promised a new era of “openness in government.”
“We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration,” he wrote in one of his first memos to federal agencies. “Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”
But the reality has not matched the president’s rhetoric. We, presidents of two of the nation’s largest journalism organizations, and many of our thousands of members, have found little openness since Obama took office. If anything, the administration has gone in the opposite direction: imposing restrictions on reporters’ newsgathering that exceed even the constraints put in place by President George W. Bush.
Democrats criticized the Bush administration for not making decisions based on the best science. But the Obama administration now muzzles scientists and experts within federal agencies. When they are allowed to talk about important public health issues, a chaperone often supervises every word. These constraints keep the public from learning whether decisions are science-based or politically motivated.
Consider these few examples:
- After last year’s oil spill in the Gulf of Mexico, scientists and environmental groups accused the administration of hiding or underreporting the extent of the spill and its impact on the environment. Federal officials frequently deferred to BP in providing data on issues from cleanup workers’ health problems to oil spill flow estimates. The government also placed restrictions on airspace for weeks, keeping media photographers from seeing the scope of the spill.
- The Food and Drug Administration placed an unusual restriction on reporters when announcing changes to its medical device approval process this year. In exchange for providing the information to the media ahead of time, reporters were told they could not seek insights from outside experts before the formal announcement. This ensured the first version of the story contained only the FDA’s official position and ran counter to the way medical journals handle such embargoes.
- In more than a third of requests made for public records last year, the administration failed to provide any information at all, the Associated Press reported. Despite an increase in requests, the Obama administration is releasing fewer records under the Freedom of Information Act than the Bush administration did. And when a response is provided, it often is incomplete or comes years later. The AP noted ironically that the Obama administration even censored 194 pages of internal e-mails about its Open Government Directive.
Our members have seen this phenomenon day in and day out, impeding their ability to give readers a complete picture of their government’s actions and omissions.
Obama signs an anti-transparency budget
On 15 April 2011, ProPublica’s Marian Wang reported that the budget bill passed by Congress calls for a major reduction in transparency programs:
Though the budget deal struck by lawmakers over the weekend averted a shutdown of the federal government, it still has open-government advocates worried about a shutdown of another sort: a shutdown in transparency.
Lawmakers in both houses passed a six-month spending bill yesterday, dealing a deep cut to key transparency initiatives. Some of those initiatives were launched with much fanfare at the outset of the Obama administration.
For more on the shutdown, see this post.
And the best single analysis
But the best single analysis of the Obama administration’s transparency fail comes from University of Chicago law professor Geoffrey R. Stone, who also chairs the board of the American Constitution Society.
His 26 June 2011 New York Times op-ed is headlined “Our Untransparent President.”
His summation [via his website] deftly defines the contrast between Candidate Obama and President Obama:
At least four obvious areas of concern regarding transparency confronted President Obama when he entered the White House.
The first involves the problem of classification, and it is, to be fair, a bright spot on the president’s record. Soon after taking office, Mr. Obama repealed a directive, issued by Mr. Bush’s attorney general, John D. Ashcroft, in October 2001, authorizing the government to classify information whenever its disclosure might potentially harm national security. This standard ignored the competing national interest in preserving an open and responsible government. Prior administrations had employed a more open approach, and President Obama’s repeal was a significant step in the right direction.
But his record on whistle-blower protection, another key area of concern, has been less laudable. In early 2009 members of Congress enthusiastically introduced the Whistle-Blower Protection Enhancement Act, which promised substantial protection to certain classes of government employees who report matters of legitimate public concern to lawmakers or the media. Although as a candidate Mr. Obama had expressed support for such a law, his administration cooled to the idea and let it die in the Senate in late 2010 (it was reintroduced in April 2011). Sadly, as a number of high-profile criminal cases against whistle-blowers show, the Obama administration has followed its predecessor in aggressively cracking down on unauthorized leaks.
President Obama has also followed Mr. Bush in zealously applying the state secrets doctrine, a common-law principle intended to enable the government to protect national security information from disclosure in litigation. Although legitimate in theory, the doctrine had been invoked in an unprecedented manner by the Bush administration to block judicial review of a broad range of questionable practices.
The dawn of the Obama administration brought hope that Congress would enact the proposed State Secrets Protection Act of 2009, which would have limited the scope of the doctrine. Indeed, shortly after President Obama took office, Attorney General Eric H. Holder Jr. suggested that the doctrine should be invoked “only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.”
Since then, however, the Obama administration has aggressively asserted the privilege in litigation involving such issues as the C.I.A.’s use of extraordinary rendition and the National Security Agency’s practice of wiretapping American citizens.
Finally, events during the Bush administration made clear that it was long past time for Congress to create a federal journalist-source privilege. Forty-nine states and the District of Columbia have recognized such a privilege, and members of Congress proposed the Free Flow of Information Act to recognize a similar privilege as a matter of federal law. If enacted, the law would enable journalists to protect the confidentiality of their sources, unless the government could prove that disclosure of the information was necessary to prevent significant harm to national security.
In what seems to be a recurring theme, Senator Obama supported the Free Flow of Information Act, but President Obama does not. In 2007, he was one of the sponsors of the original Senate bill, but in 2009 he objected to the scope of the privilege envisioned by the bill and requested that the Senate revise the bill to require judges to defer to executive branch judgments. Although the bill passed in the House in the last Congressional session, it stalled in the Senate and now has to be reintroduced.
The record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations. This is a lesson in “trust us.” Those in power are always certain that they themselves will act reasonably, and they resist limits on their own discretion. The problem is, “trust us” is no way to run a self-governing society.
Former federal officials weigh in
One of the most striking critiques of the Obama administration’s record came on 29 June in an open letter signed by a long list of retired federal officers.
We offer it in full, minus the signatories, which may be found at this link [PDF warning] via the POGO website:
An Open Letter to President Barack Obama And Congress from Federal Whistleblowers and Taxpayers Still Waiting for Promises for More Accountability to Be Kept
This week marks half a year since a third version of the Whistleblower Protection Enhancement Act (WPEA) died after nearly unanimous passage. Once again, a lone Senator placed a “secret hold” and snuck home undetected at the close of the last Congress. As the Fourth of July approaches, your inaction in this Congress after many promises for greater protection of our patriotic federal whistleblowers and taxpayers is a disservice to our nation. The House has not even introduced a successor bill to the reform that last December 22 passed by unanimous consent.
The undersigned write to urge that you act on last December’s mandate to protect whistleblowers without further delay. We are current or former federal employees who have blown the whistle, and know the consequences. Our titles are for identification purposes only. We are speaking as private citizens, not as representatives of the agencies where we are or were employed.
For half a year, you have allowed potentially billions of tax dollars to be wasted because all federal workers know they cannot speak up without engaging in professional suicide.
The Whistleblower Protection Act of 1989 no longer works. It has been neutered by past decisions from the U.S. Merit Systems Protection Board (MSPB), and by the U.S. Court of Appeals for the Federal Circuit with its hostile, activist court rulings and monopoly review of MSPB appeals. These bodies have allowed agencies to side-step the Act with security clearance revocations, and their own retroactive ad hoc unclassified information designations. Less than 2% of whistleblower cases prevail before single MSPB “judge/jury/executioner” examiners. The Federal Circuit consistently has set precedents that undermine and negate the intent of Congress, including that a whistleblower may only prevail if the wrongdoer must prove misconduct by “irrefragable proof.” to be eligible for protection. Federal whistleblowers need normal access to court, including reviews by the regional circuit courts and jury trials, the same as provided to private sector employees in every one of ten corporate whistleblower laws passed since 2002.
Those protecting the taxpayers should not have second class due process rights, compared to those protecting the shareholders.
Additionally, there is not adequate review of one of the most common tactics for retaliation — security clearance revocation. No one is committed more than us to preventing classified information from being leaked to the media or dumped onto WikiLeaks-type sites, but we want employees in the intelligence community to have a safe venue to make lawful classified disclosures. Historically, the worst boondoggles stem from classified military and intelligence contracts like the Air Force’s F-22 fighter and the National Security Agency’s “Trailblazer” domestic U.S. warrantless surveillance program.
For half a year, you have not delivered the whistleblower and taxpayer protection reform you promised. Meanwhile federal spending continues at extreme levels without adequate oversight. Billions of unaccountable taxpayer dollars are being blown as a result of federal employees being reluctant to report fraud, waste, and abuse. You tell the public that you wish to prevent our federal government’s historically excessive waste — but without the testimony of eyewitness officials out in the field and in the cubicles the government’s investigators and enforcers are lame. Right now, exposing extensive waste or those abusing power in the high in the chain of command is a ludicrous risk.
Half a year has not been necessary for re-evaluation of the unanimously approved legislation held by one senator. Our community is no longer going to accept the ransoming of this legislation by elements of the executive branch or by either the majority and minority congressional committees or by any member of Congress — it stinks of political partisanship and gamesmanship. We do not need any more hearings – where only two or three members of Congress may have the guts to show up and face people discussing their ruined lives and careers — just to ask about what we already know: there are not enough protections for significant disclosures that embarrass senior executives.
For half a year, you have continued to claim support for whistleblowers while standing by as prosecutions, instead of protections, are pursued. The cat’s out of the bag among federal officials: “Don’t be a hero — turn a blind-eye so you can collect another paycheck to support the family.”
We can wait no longer.
Senators and Members of the House: We urge a Fourth of July patriotic resolution: Move the Whistleblower Protection Enhancement Act promptly upon your return from the recess. Equally significant, do not weaken last year’s good government legislation. The reform mandate must pass intact, or be strengthened to justify the delays. There will be no credit for past promises if you do not act now. This issue is a weathervane of your commitment to responsibly reduce the debt. America needs your leadership to stop wasting our nation’s best resource against waste.
On July 30, 1778, the Continental Congress enacted America’s first whistleblower protection law. We ask that Congress declare July the Thirtieth National Whistleblower Day, honoring whistleblowers for their contributions throughout history and waste no more time in sending this patriotic policy to the President’s desk.
Mr. President, we urge you to do all you can to expedite this reform to fulfill your promise to federal whistleblowers. Do not shame your pledge to increase transparency and accountability to the American people.
And a last item
To bring us up to date, consider this 6 July post from The Hill’s Sam Youngman and Mike Lillis:
The White House has gone hush-hush over a meeting President Obama reportedly held last weekend with Speaker John Boehner, refusing to confirm whether it happened.
Though administration officials have repeatedly talked of running the most transparent White House in history, they argue announcing, confirming or discussing meetings like the one Obama is said to have had with Boehner (R-Ohio) could blow up a deal over raising the debt ceiling.
In comments Tuesday at the White House Briefing Room, Obama promised to keep updating the American people on his negotiations with congressional leaders, which he said had taken place over the weekend.
But White House press secretary Jay Carney on Wednesday refused to confirm that Obama and Boehner had spoken face-to-face. He also said no specifics would be forthcoming from his office.
And in conclusion. . .
How’s that transparency award looking to you now? Maybe something like Nobel Peace Prize, given to the guy who has subsequently launched three more wars, two of them by remote controlled drones.
One thing Barack Obama is not the transparency president.
And if you’d like to join a list of luminaries who are calling for revocation of that award, go here.