"A New Era of Openness?": Disclosing Intelligence to Congress under Obama

By Clark, Kathleen | Constitutional Commentary, Summer 2010 | Go to article overview
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"A New Era of Openness?": Disclosing Intelligence to Congress under Obama


Clark, Kathleen, Constitutional Commentary


As a candidate, Barack Obama promised "a new era of openness," and his administration has taken some significant steps to increase transparency in the executive branch. But it has also continued the Bush administration's policy of invoking the state secrets privilege to avoid judicial scrutiny of controversial warrantless surveillance and torture programs. Many commentators have noted the parallels between the Bush and Obama policies on disclosing sensitive information to courts, but they have paid little attention to whether the Obama administration has continued Bush administration policies regarding the disclosure of sensitive information to Congress.

This Essay fills that gap, and looks in detail at the Bush and Obama Administration responses to legislative proposals for expanding intelligence disclosures to Congress. It reviews the Bush and Obama Administration positions on legislation that would require intelligence disclosure to Congress, and finds that there are substantial similarities--though not identity--between the Bush and Obama Administration approaches. Both Administrations have opposed disclosure of covert actions to the full intelligence committees and the disclosure of internal executive branch legal advice. On these most sensitive intelligence issues, we will see increased disclosure to Congress only over the objection of President Barack Obama.

I. INTRODUCTION

The Obama Administration came into office with great expectations for increased transparency. As a candidate, Barack Obama promised "a new era of openness," pledging that he would "restore the balance we've lost between the necessarily secret and the necessity of openness in a democratic society." (1) On his first full day in office, he issued memoranda proclaiming that his "Administration is committed to creating an unprecedented level of openness in Government," (2) directing the Attorney General to issue new guidelines to agency heads about the Freedom of Information Act ("FOIA"), "reaffirming the commitment to accountability and transparency," (3) and an executive order on presidential records, reversing the George W. Bush executive order that permitted the heirs of deceased former Presidents to invoke constitutional privileges and prevent disclosure. (4) Since then, Attorney General Eric Holder issued a memorandum reversing John Ashcroft's 2001 FOIA memorandum, and indicating that the Justice Department would defend nondisclosure only if disclosure will harm "an interest protected by one of the statutory exemptions ... or [if] disclosure is prohibited by law." (5) The Justice Department released long-sought legal memoranda about the CIA's torture program, (6) and the Office of Management and Budget directed executive branch agencies to make high value data sets freely available on the web. (7)

But the Obama Administration has disappointed open government advocates by opposing efforts to hold accountable those involved in several controversial Bush Administration intelligence programs: warrantless surveillance, torture and extraordinary rendition. President Obama personally opposes a proposed truth commission to investigate the interrogation and warrantless surveillance programs, (8) preferring to look forward rather than backward. (9) Obama personally intervened and reversed a Justice Department decision to abide by an appellate court decision that the FOIA requires the government to release photographs of U.S. military personnel abusing prisoners in Iraq and Afghanistan. (10) Instead, the executive branch sought Supreme Court review of that decision, and while the case was pending, convinced Congress to revise FOIA in order to avoid disclosure. (11)

In a move that has received much attention in the press and blogosphere, the Obama Administration has favored secrecy over transparency to avoid judicial scrutiny of the Bush Administration's warrantless surveillance and torture policies. (12) Although the Administration instituted new internal executive branch procedures for invoking the state secrets privilege, it has not changed the executive branch's stance in court.

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