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Tuesday, October 22, 2013
There Goes the Sun
President Obama has had successes and failures in changing the way Washington works. When it comes to his transparency promises, there’s not much to cheer. His 2008 campaign talked the talk, but nine months into his second term, where’s the walk?
By Kara Hackett
Upon his election in 2008, President Obama listed his promises to protect federal whistle-blowers and inspire a new level of openness in government in an agenda on Change.gov. The agenda describes federal whistle-blowers as “watchdogs of wrongdoing and partners in performance.”
But when Edward Snowden released secrets the government didn’t want to share, Obama’s promises were wiped from the Web by an invisible hand.
John Wonderlich, policy director for the Sunlight Foundation, attributed the timing of the wipe to the agenda’s content. He said the president’s words went from being “an artifact of his campaign to a political liability.”
Now, after a turbulent start to Obama’s second term in office, his administration’s 2009 promise to be “the most open and transparent in history” is another liability. And even though Obama’s agenda returned to the Web on July 31, his reputation as a president who supports transparency is slow to rebound.
A ‘MIXED RECORD’
On Obama’s first full day in office, he set the standards for a “new era of openness” in two presidential memoranda.
The first instructed agencies and departments to “adopt a presumption in favor of disclosure” when responding to Freedom of Information Act requests.
The second ordered the Office of Management and Budget to lay the groundwork for an Open Government Directive to reform FOIA policies among federal agencies.
These memos were a sigh of relief for Rick Blum, coordinator of the Sunshine in Government Initiative. He helped petition Congress for FOIA reforms from 2005 to 2007, and after enduring excessive secrecy during the Bush administration, he was ready for change.
“One thing Obama has done well is to draw attention to government transparency as a priority,” Blum said.
In December 2009, the White House issued its Open Government Directive, ordering agencies to publish at least three high-value data sets on Data.gov and create an open government Web page to update citizens about its progress.
Patrice McDermott, executive director of Open the Government Coalition, said some agencies caught on quickly. She noticed a different attitude in some agencies proactively posting information as they saw the public need for it and using technology to make government more transparent.
After the Gulf oil spill in 2009, some agencies, such as the National Oceanic and Atmospheric Administration, helped keep the public informed about the extent of damage and the progress of cleanup efforts.
“Those things are what I call the duck paddling under the water,” McDermott said.
Even so, she admits that the administration’s overall progress on its transparency goals has been hindered by questionable practices.
“Generally we say it has been a mixed record and mixed bag,” McDermott said.
When Attorney General Eric Holder sent out a memo in March 2009 ordering agencies to update their FOIA regulations, most agencies, including the Department of Justice, ignored his instructions.
The National Archives and Records Administration conducted a governmentwide audit in December 2012 that revealed 62 of 99 federal agencies had not updated their FOIA regulations since 2009, and 31 agencies had regulations more than a decade old. The DOJ’s own FOIA regulations dated back to 2003.
Although Obama’s lofty goals were helpful in dismantling the open hostility to FOIA of the Bush administration, Ken Bunting, executive director of the National Freedom of Information Coalition, said that if the president wants to make this the “most transparent administration in history,” he still has a long way to go.
“At some point, it’s got to stop being words and start being action,” Bunting said.
CONTROLLING THE MESSAGE
One agency making good on its transparency goals is the Environmental Protection Agency. It rolled out a program called FOIAonline in 2012 alongside the National Archives and Records Administration and the Department of Commerce.
FOIAonline is a one-stop website for requesters to access, track and query FOIA requests from six member agencies. Blum said it saves these agencies time and money processing repeated requests by requiring them to post all of their responsive documents online in searchable formats. That way, anyone can see what has already been requested and pull the needed information.
“It’s a hub that makes agencies processing FOIA requests very efficient,” Blum said. “It allows the public to get these documents very efficiently, too.”
But New York Times reporter Sarah Cohen isn’t sure the program is in journalists’ best interests. She thinks posting all public documents eliminates reporters’ role as the trusted sieve of information and gives too much power to government officials by allowing them to decide what the public needs to know.
“I’m not sure I want the government deciding that for me,” Cohen said.
She’s also skeptical that agencies parading more information online provides a good measure for what journalists consider “transparency.” She said the information agencies provide is often an extension of their public relations arm to help them enlist support rather than to help the public understand what is really going on.
“It’s not envisioned as a way to hold the government accountable,” she said.
Some of her FOIA requests for the Times last year flew through the process faster than ever, while others are still standing in records purgatory. She attributes the difference to whether her request has the potential to reveal wrongdoing.
When the information she’s seeking will tell her something that’s in the government’s interest for her to know, it comes quickly. But when her request might reveal what the government wants to hide, she’s hemmed in by the press office and unable to talk with anyone who can direct her to a knowledgeable source, she said.
Even when she finds people with the information she needs, they sometimes tell her that what she’s looking for does not exist.
“This is an administration that likes to control the message, and that can include keeping a tight rein over information, and that can include dripping out information as you see it will best suit your needs,” Cohen said.
Blum attributes Cohen’s experience to different definitions of “transparency.”
He said Washington thinks transparency means including citizens in the decision-making process. But reporters expect the government to give them the information they want even when it may be embarrassing or difficult to turn over.
“That’s a different standard,” Blum said.
The problem is Obama’s statements at the start of his presidency match the reporters’ definition. In his first FOIA memo, the president said the government should not withhold information “merely because public officials might be embarrassed by disclosure.”
This standard has reporters and open government groups asking for answers when Obama’s administration fails to deliver — or worse, resorts to prosecuting federal whistle-blowers for revealing government wrongdoing.
Mark Horvit, executive director of Investigative Reporters and Editors, thinks the discrepancy shows the government tries to create a veneer of transparency rather than actually practice it for the sake of the public.
“It’s easy to say you’re going to be transparent,” Horvit said. “It gets a lot harder to do when you’re asked to give out information that puts you in a less-than- flattering light.”
When Angela Canterbury testified in March before the House Committee on Oversight and Government Reform, she said it’s like there are two Obama administrations.
One is a democracy where accountability to the people is an ideal and a priority. The other is a national security state where claims of threat can be used to trump the people’s right to know.
“Of course, this is not an approach exclusive to this president,” Canterbury said in her testimony. “But the unchecked secrecy of Obama’s national security state is at cross purposes with many of his administration’s openness objectives, and it raises doubts about the president’s commitments and declarations about transparency.”
As director of public policy for the Project on Government Oversight, Canterbury said the biggest questions have to do with Obama’s strengthening public access and supporting whistle-blowers with one hand and then creating loopholes to weaken those laws with the other.
For instance, the president has made strides reining in over classified information markings and streamlining markings on controlled unclassified information. In the years after the 9/11 attacks, the government over classified an estimated 50 to 90 percent of classified information and used more than 100 arbitrary markings to hide unclassified information from public view.
When in doubt, officials labeled information as “sensitive but unclassified” using arbitrary markings, such as “For Official Use Only” or “Eyes only.”
Over time, the government accumulated more than 100 of these arbitrary markings to hide unclassified information in an unregulated, agency-specific system.
Steven After good, director of the Project on Government Secrecy for the Federation of American Scientists, watched as records that had been public since the advent of the Internet suddenly were removed or put behind a firewall throughout the 2000s.
When Obama came to office, After good said the president helped consolidate and standardize the former “ad hoc” marking system by signing Executive Order 13556 on Nov. 4, 2010, called Controlled Unclassified Information.
The order assigned the National Archives and Records Administration, the nation’s official record keeper, to weed out illegitimate “sensitive but unclassified” markings and determine which markings government officials can use when information actually presents a threat.
“Third-party input is the best way to guard against self-serving classification actions,” After good said.
The National Archives and Records Administration reported two steps in the initial stages of shaping the new Controlled Unclassified Information program that will be implemented at a deadline that is yet to be determined, according to the National Archives and Records Administration’s website.
But at the same time Obama is streamlining “sensitive but unclassified” markings, he is overseeing the harshest prosecution of unauthorized leaks of information in U.S. history.
WEEDING OUT BAD PRACTICES
When air marshal Robert MacLean received a text message in July 2003, he thought it was a mistake.
The message said the Transportation Safety Administration, which oversees Federal Air Marshal Service, was canceling several months of missions to help cut costs. Because the air marshals had been briefed about a possible hijacking plot, MacLean feared canceling the missions might endanger the public.
He went through internal channels to address the issue with his supervisor and later the Department of Homeland Security’s inspector general. But when nothing changed, he took matters into his own hands.
MacLean had two government-issued cell phones. One was a data-encrypted, password-protected Palm Tungsten W smartphone. The other was an unsecured Nokia phone. Since the message in question was unmarked and sent to his unsecured Nokia phone, he reasoned it was OK to share the text with the chief Washington correspondent for MSNBC.
When MSNBC broadcast the story, it made a big splash. Eleven members of Congress joined the discussion, and the TSA reversed its decision, calling it a mistake.
“But it just didn’t matter,” MacLean said. “The government can’t be wrong.”
The TSA identified MacLean as the leaker and fired him in April 2006.
Five months later, TSA issued a retroactive order saying the text’s content was “sensitive security information,” and MacLean broke the law by sharing it.
“This is the kind of arbitrary exercise of authority that needs to be gradually weeded out of government information policy,” After good said.
But eight years later, the Obama administration is still litigating against MacLean in an expensive legal battle that has become the longest non-intelligence community whistle-blower case in history.
And retroactive markings aren’t the only way the government twists the rules to retaliate against federal insiders who share information with the press.
The Obama administration has used the Espionage Act of 1917 seven times, more than all previous presidents combined, to prosecute federal employees who expose government waste, fraud and abuse.
These are the same employees the president once pledged to support.
As a senator filling out a National Whistleblowers Center survey in May 2007, Obama checked yes on a box supporting legal protection for federal whistleblowers who reveal problems in government anti-terrorism efforts and Homeland Security.
When he became president, he advanced legislation and policies to protect federal whistle-blowers more than any president in history, Canterbury said.
Obama signed the Whistleblower Protection Enhancement Act in November 2012 to clarify what disclosures are protected from administrative reproach. He also issued Presidential Policy Directive 19 to extend some protections to intelligence and national security community personnel left out of the WPEA.
But less than six months later, the government created a national security loophole to undermine both of these measures in its appeal in the Berry v. Conyers & Northover case, Canterbury said.
The case involves two lower-level Defense Department employees, Rhonda Conyers and Devon Northover, who were suspended and demoted, respectively, because they were found ineligible for their positions.
Conyers was an accounting technician suspended for overdue debt, and Northover was a commissary management specialist demoted after a background investigation.
Both employees were told they were unfit to deal with “sensitive information” on the job even though neither of their jobs required a security clearance and neither of them had access to any classified information in the first place.
Usually Defense Department employees like Conyers and Northover can appeal workplace reprisals to the Merit Systems Protection Board. But the DOD and the Office of Personnel Management denied the pair this privilege by saying they were “noncritical sensitive” employees.
This job classification was reinforced by a Federal Circuit Court ruling on Aug. 20 that allows the government to label certain jobs as “noncritical sensitive” for national security reasons even when employees do not have access to classified information.
Canterbury fears the government could use this “noncritical sensitive” label to keep employees in those positions quiet by taking away their right to appeal to the Merit Systems Protection Board even when they are blowing the whistle on government wrongdoing.
“This deeply flawed, activist decision arms agencies with sweeping power not granted by the president or Congress, leaving untold numbers of federal workers with no right to challenge discrimination or retaliation for whistle-blowing,” Canterbury said in a statement one day after the decision was made.
Although there’s consensus among open government groups that the Conyers decision deserves more attention, different groups blame different people in government for cracking down on federal whistle-blowers.
McDermott is reluctant to blame Obama. She thinks he still supports federal whistle-blowers, even though his support has been tempered by Congress pushing him to protect national security interests.
“Obama is pushed in a lot of different ways, and he has seen real threats,” Mc- Dermott said. “He’s conflicted about how to deal with national security whistleblowers, and how to address keeping government open and accountable at the same time as what he sees as his responsibility to protect citizens.”
But Jesselyn Radack, the national security and human rights director for the Government Accountability Project, isn’t letting Obama off the hook.
After blowing the whistle herself as an ethics adviser to the Justice Department under the Bush administration, she became a defense attorney for federal whistle-blowers, and she’s watched the outlook for them go from bad to worse under the Obama administration.
She said whistle-blowers who go through the internal channels to report wrongdoing used to suffer workplace reprisals. But now, under Obama, they’re facing the rest of their lives in prison.
“It would be one thing if Obama had continued the secrecy regime Bush put in place,” Radack said. “But he is actually expanding that secrecy regime, and that lies at the feet of Obama and no one else.”
Radack said people who run open government groups typically want to temper what they say about Obama because he tosses them bones. For instance, when it was revealed in May that the Justice Department had subpoenaed 21 Associated Press phone lines and accused Fox News correspondent James Rosen of being a possible “co-conspirator,” Obama ordered Attorney General Holder to review the Justice Department’s guidelines for going after reporters or their records.
The president said he was troubled by the possibility that the mass subpoena may “chill” investigative journalism.
But Radack said if Obama was seriously concerned, he would have told the DOJ to drop its subpoena on James Risen, an author and New York Times national security reporter. The government is trying to force Risen to testify against his own sources for a chapter in his 2006 book “State of War” about a botched CIA plan to trick Iranian nuclear scientists during the Clinton administration.
When Risen’s case went to the Fourth Circuit Court in July, the court ruled there is no reporter’s privilege under the First Amendment to protect him. He can either testify or go to jail.
“Obama puts out beautiful, pretty statements,” Radack said. “Then he not only fails to fulfill his promises, but does something more harmful.”
CHANGING THE WAY WASHINGTON WORKS
The problem with making ambitious and idealistic statements at the start of a presidency is that any setback looks like a failure, McDermott said. She doesn’t think Obama intentionally deluded the public and the press when he promised greater transparency.
Rather, she thinks he simply underestimated the difficulty of working with an administration that operates less like a ship of state and more like an aircraft carrier surrounded by boats of all sizes.
“It’s hard to turn,” McDermott said.
When it comes to secrecy policies and FOIA procedures, Aftergood explained that the administration is actually a cluster of different subcultures. Each agency has its own distinct flavor and predominant practice.
“Part of the problem is we assume that the Obama administration is a monolithic entity that has a dominant policy direction,” Aftergood said. “That’s only partly true at best.”
For instance, he’s found the National Security Agency to be forthcoming about transparency concerns. Yet, he said, the Central Intelligence Agency is difficult to work with and largely unresponsive.
“Both of them are part of Obama administration,” Aftergood said. “But they have quite different characters and relations with members of the public, even though they’re both intelligence agencies.”
Unfortunately, some of the worst crimes against transparency have been committed by the agency that gives FOIA guidance to all others: the DOJ.
The true inconsistency between Obama’s words and the DOJ’s actions took center stage during the first year of his second term when the DOJ’s massive subpoenas and inconsistent explanations frustrated reporters and open government advocates.
But David Cuillier, national SPJ president and past Freedom of Information Committee chairman, hopes the “unusual” hype about open government this year will do more than inspire anger. He hopes it spurs long-awaited FOIA reforms.
“Journalists are pretty fired up and mad now, and they should be,” Cuillier said. “We need to seize on that.”
The U.S. has one of the weakest FOIA laws in the West. It ranks 40th out of nearly 100 countries, below Mexico and Ethiopia, according to the Global Right to Information Rating.
But most Americans don’t seem to care, Cuillier said.
Instead of pointing fingers at Obama’s tendency to talk up open government without practicing it, Cuillier calls attention to how the public, including reporters, does the same thing.
“While Americans say they value openness, the reality is more and more of them are willing to accept secrecy, and that’s dangerous,” he said.
He’s afraid the public is gradually warming up to the idea of a national security state like a frog in a kettle of water slowly rising to a boil.
“It’s time we jump out of that kettle because the water’s pretty hot right now,” Cuillier said.
STRIKE WHILE THE IRON IS HOT
One of the major reforms Cuillier and other open government advocates have in mind is making the Office of Government Information Services completely independent and endowing it with more power as an FOIA mediator.
The Office of Government Information Services is a neutral third-party mediator, or ombudsman, under the National Archives and Records Administration, that helps settle FOIA disputes between requesters and federal agencies.
Congress endowed it with a twopronged responsibility: reviewing agencies’ FOIA policies, procedures and compliance, and offering mediation to avoid federal court cases.
Miriam Nisbet, director of the Office of Government Information Services, said the agency is also charged with making recommendations on improving the FOIA process. One way it’s working to do that is by helping agencies improve communications with requesters and focus on customer service.
“We’re not here to be an advocate for requesters or agencies,” Nisbet said. “We’re here to be an advocate for the system working the best way it possibly can.”
Even so, Cuillier and other open government groups are asking Congress to make the Office of Government Information Services independent so it has more power to force federal agencies to cough up records.
Congress is considering the Office of Government Information Services reforms as part of HR 1211, the FOIA Oversight and Implementation Act of 2013. The bill allows the Office of Government Information Services to report directly to Congress without going through the Office of Management and Budget, thus increasing the likelihood of making its recommendations a reality.
Cuillier encourages reporters and citizens to contact their members of Congress to tell them the U.S. needs an independent the Office of Government Information Services to ensure proper FOIA interpretations.
Blum, who fought to establish the Office of Government Information Services in 2007, said that if Obama wants to make good on his promise to have the most transparent administration in history, he should start supporting FOIA reforms strong enough to actually hold the government accountable.
“It’s great citizens might be able to participate more in government decisions, but government also needs to be open to identify shortcomings so that the democratic process can work,” Blum said. “I think that’s FOIA’s biggest challenge and the biggest challenge facing this administration’s legacy on transparency.”
Kara Hackett was SPJ's 2013 Pulliam/Kilgore Freedom of Information intern. She now works at the Fort Wayne (Ind.) Journal Gazette. Interact on Twitter: @karahackett. Send letters to email@example.com.