Talking Transparency Isn't the Same as Seeing It Through

By Dana Milbank
Thursday, September 24, 2009

Somewhere, in a secure, undisclosed location, John Ashcroft is chuckling.

President Obama campaigned on a promise to restore transparency to government. But now the time has come to renew the USA Patriot Act, the bete noire of civil libertarians. When the Obama administration's point man on the legislation came to Capitol Hill on Wednesday, he sounded very much like his predecessors in the Bush administration.

Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, asked Assistant Attorney General David Kris whether the administration would support congressional oversight as part of the Patriot Act. "We don't have a position on anything particularly yet," Kris answered.

Sen. Dianne Feinstein (D-Calif.), chairman of the Intelligence Committee, asked whether the Democrats' proposed changes to the Patriot Act would impede current investigations. "We're not going to discuss classified matters here, and also there is this Justice Department policy about commenting on ongoing investigations," the official commented.

Sen. Russ Feingold (D-Wis.) pointed out that of the several hundred "sneak and peek" search warrants issued under the Patriot Act, only three were for terrorism cases and most were for drugs. "I guess it's not surprising to me that it applies in drug cases," Kris replied.

Feingold was surprised by the witness's lack of surprise. "As I recall, it was in something called the USA Patriot Act," he said scornfully, "which was passed in a rush after an attack on 9/11 that had to do with terrorism."

The performance must have been disheartening for Democrats, because Kris was supposed to be one of the good guys. Once a Clinton and Bush Justice Department official, he scolded his former Bush colleagues in 2006 for their "weak justification" of the warrantless wiretapping program.

But if disappointing, Kris's guardedness was to be expected. Obama may

have promised new openness, but "so far, the continuities between the Obama and Bush administration overwhelm the differences," says Steven Aftergood, who runs the Project on Government Secrecy for the Federation of American Scientists.

Obama gets credit for making public a 2004 report on CIA interrogations and Justice Department torture memos, and for releasing more records of White House visitors. He restored news coverage of returning caskets of fallen soldiers. On Wednesday, he earned mixed reviews from civil libertarians when he signaled an intention to keep fewer things hidden under the "state secrets" policy.

But transparency advocates such as Aftergood and Elizabeth Goitein of the Brennan Center point to many more shortfalls: refusing to release information about detainees held at the Bagram detention facility in Afghanistan, reneging on a decision to release photos of detainee abuse, using signing statements to undermine legislation, defending the granting of immunity to telecom companies that participated in the wiretap program, and opposing a request that all intelligence committee members be briefed on covert operations.

Of course, these moves could be evidence that Obama is being cautious and responsible as campaigning yields to governing. But whatever the reason, civil libertarians have reason to feel that Obama sold them a bill of goods -- and Wednesday's hearing of the Senate Judiciary Committee was unlikely to change this feeling.

Kris began by requesting renewal of the three expiring provisions of the Patriot Act. Leahy has introduced a bill that would extend the provisions while also adding a few new protections, but Kris wasn't at liberty to discuss these.

Leahy asked whether Kris would agree to an effort to stop the abuse of "national security letters," which have been used to obtain bank and medical records without warrants. "We don't have an official administration position on that element of your bill or the others," the witness informed the chairman.

Feinstein fared no better when she asked whether the Justice Department would have a problem with requiring that there be "reasonable grounds to believe that the information sought is at least relevant to an authorized investigation."

"That's a position we'd like to work through in an orderly fashion," Kris demurred. Feinstein asked another question, and Kris repeated his wish not to "get into anything classified or operational."

The other committee members got similar answers: "I would be reluctant to discuss that in an open hearing. . . . I think I should defer getting into the possibly classified details of anything here. . . . I wouldn't put it the way you've just put it, Senator." When Sen. Sheldon Whitehouse (D-R.I.) pointed out a problem with one of the Patriot Act procedures, Kris labeled the senator "a very precise and careful technical lawyer to pick up on this."

"It's not something I just invented," Whitehouse shot back.

Feingold, who has proposed legislation that would sharply curtail the Patriot Act, lectured Kris that "its quite extraordinary" to allow the government "to secretly break into Americans' homes in criminal cases, and I think some Americans might be concerned that it's been used hundreds of times in just a single year on non-terrorism cases."

"Well," the witness replied, "I don't mean to quibble with you." But he did anyway.

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