This week is Sunshine Week, which provides a perfect opportunity to evaluate the Obama administration’s record. Taken together, this record suggests progress toward transparency, but it arguably falls short of what Obama promised.
The administration’s record does reflect some commitment to transparency. It revoked President George W. Bush’s pro-secrecy changes to the Presidential Records Act. It introduced the Open Government Directive, which pushed agencies to proactively publish data and develop public feedback mechanisms. It began the Open Government Partnership, which promotes and institutionalizes open government norms.
The president also steered the government back toward the Clinton-era “maximum responsible disclosure” standard for Freedom of Information Act (FOIA) requests, after the Bush administration had pushed in the other direction. In particular, Obama established a “presumption of disclosure” rule in an attempt to uphold the letter and spirit of FOIA.
Obama revived Clinton’s unprecedented declassification review programs, which Bush gutted in 2003. He also pushed the often resistant, but not quite autonomous, agencies to think twice before classifying information. Of course, there were exceptions, such as the administration’s odd insistence on classifying self-proclaimed 9/11 mastermind Khalid Sheik Mohammed’s interest in vacuum cleaner design. But this episode aside, classification rates have decreased to record lows, as the graph below shows:
In other respects, however, the Obama administration has erred on the side of secrecy rather than transparency. In some cases, blame could be placed on recalcitrant agencies in the giant federal bureaucracy. For instance, 55 of 101 independently audited agencies in 2013 still had not adopted Obama’s new FOIA standard. But blame also can be placed on the administration itself.
The visitors log. Although the administration announced in 2009 that it would disclose details (names, dates) from the White House visitors log, there were vaguely worded exceptions. And when White House officials wanted to keep meetings with certain people off the record, they met them at nearby cafes and townhouses. After this practice became known, officials fought against disclosure in court, arguing that the names and dates were immune to FOIA requests.
Open meetings. Related to the visitors log is the administration’s checkered support for the Federal Advisory Committee Act (FACA), widely known as the “open meetings law.” The administration did not try to sidestep FACA as frequently as some of its predecessors, but officials have played word games, such as calling private-sector participants on the post-Newtown, Conn., gun control task force “consultants” instead of “members.” That helped the administration conceal meeting records and member names.
The administration also has deployed other evasive tactics, including simply ignoring FACA. Officials have liberally utilized FACA’s court-validated loopholes, FOIA exemptions and the classification stamp to close more than 60 percent of committee meetings to the public — about the same number as under the Bush administration. See the graph below:
Derivative classifications. Although the Obama administration has lowered classification rates, it has also increasingly used a tactic called “derivative classification”:
Maybe, or maybe not. In 2012, for example, the CIA classified only four documents via the process of original classification (compared with the State Department’s 39,770). Everything else was classified via derivative classification, adhering to the CIA’s comparatively detailed “security classification guide.” We simply do not know whether these many derivative classifications were truly derivative, or whether this practice suggests that the Obama administration is as willing to classify information as its predecessors.
“Secret law.” A big debate during the George W. Bush presidency involved what critics call “secret law” — the use of secret legal memos to tell officials how to follow or flout laws. Obama seemed committed to stopping this. He appointed outspoken critics of secret law and then released some of the most controversial memos from the Bush administration.
But then Obama’s lawyers penned a memo outlining why CIA agents could kill U.S. citizens affiliated with terrorist groups. When journalists asked for proof that, for instance, U.S. citizen Anwar al-Awlaqi was a member of al-Qaeda and thus a fair target, as the government alleged, officials said they could not divulge the details. When outsiders asked to see only the legal reasoning in the memos, officials claimed those were also necessary secrets. When pressed to explain why this memo did not abridge due process rights, Attorney General Eric H. Holder Jr. famously argued that “due process and judicial process are not one and the same.”
There are other examples of secret law — involving interpretations of the USA Patriot Act, for example. Although the administration appears to have used secret law less frequently than its predecessors, we will not be able to determine that for a while, given all of the, well, secrecy.
The state secrets privilege. Based on his campaign pronouncements, it seemed that Obama would limit assertions of the state secrets privilege (SSP) to keep classified information from court proceedings or force dismissals of lawsuits brought against it. Early initiatives suggested that Obama would deliver.
Although there are examples where the administration pursued a restrained approach, overall the administration has continued to aggressively use the SSP. Not only that, it sometimes attempted to conceal unclassified information from trials, as it did against whistle-blower Thomas Drake.
Whistle-blowers. Unauthorized disclosures by Edward Snowden, Chelsea Manning and others have led the Obama administration to an uncompromising stance, insisting that these disclosures revealed important secrets. Many open-government activists and information policy experts have disagreed or demanded more evidence.
The Obama administration also has prosecuted more leakers under the Espionage Act than all other administrations combined. Although the increase may have resulted partly from the discrete decisions of prosecutors as well as improved detection technologies, it also results from the choices of senior officials to prosecute leakers under a law targeting spies.
Of course, this overview of Obama’s record leaves out many things — the emerging controversy involving Hillary Rodham Clinton’s (and Chuck Hagel’s) e-mails, when the Environmental Protection Agency twice suppressed evidence that fracking can contaminate well water, and when the administration ordered government scientists not to share estimates of the Deepwater Horizon oil spill. There are other examples, all puzzling in light of Obama’s promise to “guarantee scientific integrity throughout the executive branch.”
But it would not be fair to give all the blame — or credit — to Obama himself. The federal government is filled with thousands of bureaucrats, who make countless decisions that never enter the White House’s orbit. Congress also has an important role to play, starting with the FOIA amendment that nearly passed late last year. Moreover, Obama’s tenure as president is obviously not over, so a complete assessment of its record regarding secrecy and transparency isn’t possible.
Nevertheless, at this moment, although the administration may still wind up as one of the better ones of the sunshine era, it may not serve as the model for the most transparent administration yet to come.
Jason Ross Arnold is an assistant professor of political science at Virginia Commonwealth University and the author of the new book “Secrecy in the Sunshine Era: The Promise and Failures of U.S. Open Government Laws.”