Some Things Obama Must Explain

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Dan Froomkin
Copyright 2010
Sunday, January 9, 2011; 6:11 PM

Even as President Obama spends most of his time trying to fix the problems former President George W. Bush created or overlooked, his administration is nevertheless embracing the Bushian way of doing business on a handful of issues, most notably those that involve secrecy. Obama's approach to transparency, for instance, can charitably be described as schizophrenic. When it's good, it's good, but when it's bad, it's really, really bad. See Friday's post for a real howler. The big question, then, is: Why? When Obama's Justice Department, for instance, puts forth a legal opinion full of the kind of arguments Obama formerly characterized as extreme -- startling even rather jaded federal judges -- what is going on? Is this just inertia at work? Are holdovers from the Bush era still somehow holding out? Are top Obama appointees being circumvented or outwitted? Is this just a temporary phenomenon? Or is this actually policy coming from the White House? And if so, from exactly how high up does it come? The counsel's office? The chief of staff's office? The Oval itself? I've been calling since at least April for Obama to address a growing list of apparent hypocrisies and reversals. How, for instance, does he see DOJ's continued assertion of a hugely broad state secrets privilege or his embrace of preventive detention conforming with his previously stated views of the U.S. Constitution? There's one way reporters could hasten such an explanation: They could ask for one. And as luck would have it, another opportunity is now upon us. The White House announced today that Obama is holding his first Rose Garden press conference tomorrow at 12:30 ET. Most of the questions will appropriately be about Iran and health care, but I also want to hear about secrecy, preventive detention and -- while we're at it -- DOJ's defense of a law forbidding federal recognition of same-sex marriages. Meanwhile, McClatchy Newspapers and Newsweek offer up a few more case studies. Michael Doyle overstates the case for McClatchy: President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred. But he does put forth some compelling evidence: In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama's legal arguments repeatedly mirror Bush's: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons. "It's putting up a veritable wall around the White House, and it's so at odds with Obama's campaign commitment to more open government," said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.... On policies that are at the heart of presidential power and prerogatives... this administration's legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees. "There is no question that there are (durable) cultures and mindsets in agencies," Weismann acknowledged. Doyle notes that Obama is following Bush's lead by defending the federal marriage law, seeking to keep White House e-mails secret, seeking to keep visitor logs secret, and of course deciding to withhold photographs of detainee abuse. And Michael Isikoff writes for Newsweek: [L]ast week public-interest groups were dismayed when his own administration rejected a Freedom of Information Act request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama's "clean coal" policies.... After Obama's much-publicized Jan. 21 "transparency" memo, administration lawyers crafted a key directive implementing the new policy that contained a major loophole, according to FOIA experts. The directive, signed by Attorney General Eric Holder, instructed federal agencies to adopt a "presumption" of disclosure for FOIA requests. This reversal of Bush policy was intended to restore a standard set by President Clinton's attorney general, Janet Reno. But in a little-noticed passage, the Holder memo also said the new standard applies "if practicable" for cases involving "pending litigation." Dan Metcalfe, the former longtime chief of FOIA policy at Justice, says the passage and other "lawyerly hedges" means the Holder memo is now "astonishingly weaker" than the Reno policy.


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