Testing 'The Most Transparent Administration in History'

from the not-so-transparent dept

Barack Obama pledged to preside over the “most transparent administration in history,” drawing an explicit contrast with the extreme secrecy of his predecessor. The Web site of the Department of Justice highlights that pledge, declaring its commitment to faithfully carry out a presidential directive encouraging such transparency, especially with regards to Freedom of Information Act requests, which are a vital tool for public accountability and informed democratic deliberation about government’s activities. Earlier this summer, I decided I’d put that commitment to what should have been an easy test.

When Congress passed the controversial FISA Amendments Act of 2008, granting the NSA broad power to conduct sweeping electronic surveillance of Americans’ international communications without individualized search warrants, it wisely required the Justice Department to issue semi-annual reports to Congress on the government’s implementation of the law, evaluating compliance with the various rules, guidelines, and procedures in place to reduce the risk of civil liberties abuses. While these reports are classified, redacted versions of several previous installments have been released to the public in response to Freedom of Information Act requests. The most recent is from May of 2010, which means that by now there are three or four further reports on the government’s use of its new spying powers which haven’t been seen by the public.

Since the FAA is set to expire at the end of this year, and Congress is rapidly steamrolling toward reauthorizing the law for another five years, it seems like now would be a good time to let the public see the latest versions of these reports—with any specific references to operational details removed, of course. That’s especially true given that we’ve recently learned that at least one ruling by the secretive FISA Court found some surveillance under the FAA had violated the Fourth Amendment. The latest reports, even in redacted form, might give us further insight into the scale and seriousness of this violation of Americans’ constitutional rights. If, on the other hand, we find no mention of this in the official reports, it would be powerful evidence that Congress is getting a whitewashed account, and that internal oversight may not provide adequate protection for our privacy and liberties. Again, the government has already released several previous installments of this report—though the ACLU ultimately had to file a lawsuit before they agreed to do so—so there should be no doubt now as to whether these are documents they’re obligated to release.

On June 26, therefore, I sent a FOIA request to the Justice Department asking for the release of the newer installments of this important report—specifically asking for expedited review, given the importance of informing the public about the use of the law before Congress renews it. On July 6, I got a response acknowledging that my request had been received and forwarded to the FOIA office of the DOJ’s National Security Division. Federal law requires agencies to reply to these requests within 20 business days. I was still waiting when, a few days ago, a bill extending FAA spying authority was scheduled for consideration before the House of Representatives this week. I did, however, have a brief phone conversation with the NSD’s FOIA officer confirming that she was evaluating my request, and that she understood clearly exactly which reports I was requesting.

Yesterday morning, September 10—more than two months after acknowledging receipt of my request for these three or four documents—I finally got a reply (my emphasis added), denying my request with the following unhelpful boilerplate:

The Office of Intelligence (OI) maintains operational files which consist of copies of all FISA applications, as well as requests for approval of various foreign intelligence and counterintelligence collection techniques such as physical searches.  We did not search these records in response to your request because the existence or nonexistence of such records on specific persons or organizations is properly classified under Executive Order 13526.  To confirm or deny the existence of such materials in each case would tend to reveal which persons or organizations are the subjects of such requests.  Accordingly, we can neither confirm nor deny the existence of records in these files responsive to your request pursuant to 5 U.S.C. §552(b) (1).

This is, in a word, ridiculous. The “existence” of the reports I asked for is required by federal law. To the extent they contain passing references to any specific persons or organizations under investigation, these can easily be redacted, and have been redacted for previous public releases of the same documents. No reasonable person could believe that this reply is applicable to my request. If it had been sent immediately, you could at least put it down to sloppiness or inattention, but remember, it took them two months to send out a denial based on the preposterous claim that it is classified information whether a report mandated by federal statute even exists.

I can appeal—and of course, I intend to—but since that’s likely to drag out the process for at least another month or two, the reports are likely to come too late to be relevant to the debate over FAA reauthorization. Try as I might, it’s almost impossible for me to see this as a good faith response to my request. Instead, it looks an awful lot like a stalling tactic calculated to drag out the process until it’s too late for the documents to be relevant to the debate over the FAA. I suppose this shouldn’t be terribly surprising: DOJ’s modus operandi, at least when it comes to anything controversial or potentially embarrassing to the government, seems to be to force FOIA requesters to waste time, energy, and money going to court even when it’s painfully obvious there’s no legitimate legal basis for sustaining a denial. That this is routine enough to be predictable, however, shouldn’t make it any more acceptable in a democracy.

Cross-posted from Cato at Liberty.



Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Michael, Sep 11th, 2012 @ 7:17am

    It goes without saying that this sort of thing shouldn't happen in a truly democratic society. The DOJ does things on its own terms and doesn't care if it needs to bypass the law in order to get it. It's issues like these that need to be put in the public spotlight.

     

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      sgt_doom (profile), Sep 11th, 2012 @ 11:18am

      Re:

      Of course, since Obama's DOJ is run by Covington and Burling staff (Holder and Breuer, et al.), we must expect more of the same, just as the Treasury is run by Goldman Sachs and JPMorgan Chase....

       

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    jupiterkansas (profile), Sep 11th, 2012 @ 7:21am

    It's reasonable to assume then that whatever they're doing is underhanded and rail against the FAA.

     

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      New Mexico Mark, Sep 11th, 2012 @ 8:58am

      Re:

      Yes. If one turns on a light and sees a couple of roaches skitter under the cabinet, it is quite reasonable to assume there are more roaches. I'm not sure what kind of person believes that stonewalling simple information requests is a good thing.

      For my part, let me extend my thanks for your efforts to get original information, Mike. With rare exceptions, it seems that "reporting" in the mainstream media is dead, dead, dead, and consists of nothing more than rewording "news" from the major sources.

      Many years ago I might have railed at the slant of major media, but I had respect for some of the reporters who were at least doing honest digging to get the original information about which they reported.

       

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    Medbob, Sep 11th, 2012 @ 7:26am

    Gullible

    So, you actually believed that drivel about "Transparency"? Looks like you got snookered too! Imagine that!

     

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      Dave Xanatos, Sep 11th, 2012 @ 9:00am

      Re: Gullible

      So, you actually believed that drivel about "Transparency"?

      No.

      Doesn't mean we can't call him on it.

       

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    Ninja (profile), Sep 11th, 2012 @ 7:26am

    I'd guess raw sewer water is more transparent and clean than the current US Government. And amazingly, depressingly and surprisingly it's even worse than the previous.

    It's past time the Americans go to the streets protest against this shitty corporate driven institution they call Government. Sure there are the OWS-style movements already but America needs more. America needs the American to wake up from their lethargy and act, they need a broad and deep electoral reform, they need more parties allowed, they need money driven out of politics, they need deep electoral reforms. This should actually drive the rest.

     

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      The Mighty Buzzard (profile), Sep 11th, 2012 @ 8:05am

      Re:

      Surprisingly? Really? Nobody gets ahead enough in politics to even seriously run for President without being as corrupt as nine kinds of hell to begin with. Obama was never going to be an exception because there are no exceptions.

      And nobody with power ever wants to give it up; they always want more. What would be surprising is someone willingly giving up power without being forced at gunpoint.

       

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        identicon
        Anonymous Coward, Sep 11th, 2012 @ 9:08am

        Re: Re:

        That is the big problem with US and UK politics: Both rely on winner takes it all and there is no upside at all to changing that for anyone in politics.

        On the other hand: Executive and legislative powers are very much controlled by the same people in mainland europe and most european constitutions are lacking a lot in the area of division of power, so I do not think there is much to be said for that kind of "democracy" either.

        EU is inherently undemocratic by nature, with one and a half elections for the 3 chambers. There is no real oversight of it and there are far more lobbyists than politicians in the area.

        It was a monumental surprise to see the politicians in the parliament listen to the people. They are the elected body, but still. Now we need the commission to get off their high horse and start to look at something other than big business when creating laws, but that is a utopia for now.

         

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        Ninja (profile), Sep 11th, 2012 @ 9:21am

        Re: Re:

        Surprisingly yes. I wouldn't expect after the amazing buzz he built around him that he'd be worse than Bush. Obviously I wasn't expecting everything that was promised by the "Yes we can" line but I did expect some improvement, specially when related to freedom.

        What's surprising is that he consistently ignored all what he stood for in all his eloquence without even a shred of shame or discretion as it's usual in politics. It was blunt.

         

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    Skeptical Cynic (profile), Sep 11th, 2012 @ 7:26am

    Eric Holder is the Attorney General

    You expected anything else from his DOJ?

    House Oversight Committee Chairman Darrell Issa and Iowa Republican Sen. Chuck Grassley sent Holder a letter in May 2011 asking for details about Operation Fast and Furious, a botched federal firearms sting operation that allowed weapons to reach Mexican drug gangs.

    In October 2011, 7,600 pages of documents were released that Issa believes may have indicated Holder was sent memos in regard to Operation Fast and Furious earlier than he at first claimed, contradicting Holder's sworn testimony before the House Judiciary Committee in which he said he only recently became aware of Operation Fast and Furious in the first half of 2011. In April 2012, Issa announced that his committee was drafting a Contempt of Congress resolution against Holder in response to the committee being "stonewalled by the Justice Department."

     

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    Anonymous Coward, Sep 11th, 2012 @ 7:38am

    Meh, Obama lies almost every time he opens his mouth.

    Like that bit implying his father was buried with an amreican flag. His father was an admitted socialist(not into the american capitalist system) and lived his remaining days in kenya.

    If that guy loved this country such that they would place that flag on his coffen IN KENYA he sure hid it well.

     

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      jupiterkansas (profile), Sep 11th, 2012 @ 9:50am

      Re:

      Really? That's the thing that gets you up in arms? Whether his father was buried with a flag or not?

       

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      Josef Anvil (profile), Sep 11th, 2012 @ 10:03am

      Re: lol

      You just had to post that in TechDirt. Or did you just copy and paste it from your comments on Fox News?

      Was your comment even relevant to transparency? Ah yes it was, you are wanting to see a birth certificate from the US Gov't that actually PROVES Obama is not a US citizen.

      Hire the ACLU and sue the US for not complying with your FOIA request.

       

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    John Doe, Sep 11th, 2012 @ 7:38am

    Transparent as ObamaCare?

    This is very much like ObamaCare, you have to pass it if you want to read it. Only in this case, you can't read it then either.

     

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    Anonymous Coward, Sep 11th, 2012 @ 8:18am

    Running out the clock appears to be the DOJ's modus operandi most of the time. Just look at the Megaupload situation. New Zealand knows they don't have a case. We know they don't have a case. Kim knows they don't have a case. THEY know they don't have a case.

    So instead, they try to stall and drag things out as long as possible hoping that they can at least bankrupt Kim from the legal defense costs so that even after they are forced to drop the case, he will be ruined.

    By the way, any news on the FBI turning over the evidence they have to Kim's defense team? They were ordered to do so by the NZ court, last I heard, but that was weeks ago and I haven't heard anything about them actually doing it. Seems like if they had enough evidence to justify an Osama bin Laden style raid, it shouldn't take too long for them to present it when ordered to.


    Oh well. Megabox and Megaupload 2.0 are coming. I imagine that will frighten the powers that be far more than the raid frightened Kim, his pregnant wife, and his kids.

     

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    identicon
    Anonymous Coward, Sep 11th, 2012 @ 9:11am

    I am so happy I do not live in a democracy.
    A place where the rights of the minority are trampled.
    Where rule of law is replaced by rule of men.
    Where the executive rules by orders not by the laws of elected officials.
    I am glad I live in a republic.
    The Republic of the United States Of America.
    A republic where liberty is the function of the government and it's Constitution.
    Of course this republic has been slowly torn down over my lifetime to where we might as well just live in a democracy.

     

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      Anonymous Coward, Sep 11th, 2012 @ 10:19am

      Re:

      Where the executive rules by orders not by the laws of elected officials.


      I hate to interrupt your scree while you're only half way through you but I felt it prudent to point out an executive is a position that only exists in a Republic.

      The issue isn't too much democracy it's too much power concentrated in the pieces of the parts of the republic furthest from the people. What we have is federal scope creep.

       

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    Noah Callaway, Sep 11th, 2012 @ 9:12am

    There goes pirate mike trying to force people to make copies of everything!! Maybe they just don't like stealing their copyright from themselves.

    /troll

     

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    identicon
    Anonymous Coward, Sep 11th, 2012 @ 9:25am

    so, are you saying you are surprised as well as disappointed, or just surprised or disappointed? did you really expect anything different from a government that has done nothing but lie since trying to get into office and carried on in the same vein since getting into office? do you foresee any change if Obama gets re-elected? i sure as hell dont! i'm not sure who is actually running the country, but Obama is simply a mouth piece for the actual person!

     

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      Josef Anvil (profile), Sep 11th, 2012 @ 10:16am

      Re:

      I'm happy to deal with all the political trolls, since they really are quite amusing.

      Ok your knickers are in a bunch because the Obama administration has lied from the campaign trail to now; AND you don't foresee change if Obama is re-elected.

      Soooooo, the other guy must be completely honest and will change everything for the better. Well that convinced me. Well done. When you come back to TD, could you comment on the articles, please?

       

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        nasch (profile), Sep 12th, 2012 @ 7:42am

        Re: Re:

        Soooooo, the other guy must be completely honest and will change everything for the better.

        He didn't mention Romney at all; why are you pretending he did?

        When you come back to TD, could you comment on the articles, please?

        Did you read the article? It's about an example of whether Obama followed through on his promises. This comment is on topic.

         

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    sgt_doom (profile), Sep 11th, 2012 @ 11:20am

    Transparency and the official word

    The other week, the State Department spokesperson, Victoria Nuland, claimed that WikiLeaks' Julian Assange was making "wild assertions" about the US gov't.

    Odd, Ms. Nuland should have re-checked that phrase with her husband, Robert Kagan, one of the co-founders of that PNAC (Project for a New American Century, Dickie Cheney's fav group, since renamed to Foundation in Defense of Democracies); Kagan also on Rockefellers' Trilateral Commission (long-time member) and similar outfits.....

     

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  •  
    identicon
    Anonymous Coward, Sep 11th, 2012 @ 12:27pm

    The government is transparent.

    The government has always been transparent.

    Anyone who suggests the government is not transparent is a thought criminal.

    Welcome to Oceania, I hope you enjoy your stay.

     

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