President Obama has done more to promote the Freedom of Information Act and government transparency than any of his predecessors, but the White House has stopped using that fact as a talking point. In the wake of Edward Snowden’s NSA revelations, it’s not hard to understand why. The President has not achieved his goal of creating “a new era of open Government.” The public is increasingly wary of the ominous, ever-expanding shadow of government secrecy. Millions of documents and countless terabytes of data remain classified in violation of the law, or await a notoriously inefficient review process. The Freedom of Information Act (FOIA), the public’s only legal tool for checking the federal government’s unprecedented level of access to private information, is badly broken.
Many journalists focus on the administration’s controversial reaction to leaks of classified information at the expense of the Obama administration’s larger relationship with government secrecy. When journalists see the Justice Department prosecuting leakers under the Espionage Act of 1917, many consider it a ruthless attack on the press and the First Amendment. A Guardian columnist, for example, recently called the charges against Snowden “modern-day McCarthyism.”
But the secrecy story goes far beyond the prosecutions and the debate over NSA surveillance. Journalists, the primary users of FOIA, are channeling the debate away from a systemic problem that has festered for decades. With government secrecy, the devil’s in the details.
Thomas S. Blanton, an old hand in the FOIA saga, has a nuanced view of the problem. As Director of the National Security Archive, a small non-profit research institute affiliated with The George Washington University, Blanton has been using FOIA to fight government secrecy since the 1970s.
“On Obama and FOIA, the story is mixed,” Blanton wrote in an email to the Tufts Observer. “If your baseline is the [George W.] Bush administration, the Obama reality is so much better, it’s night and day. If your baseline is what we hoped Obama would do, or even the pledges and policy changes he made on his very first day in office, the record is much more mixed.”
Blanton, who knows government censors by name and has jokingly referred to himself as a “documents fetishist,” is no stranger to bureaucratic inertia. The Archive is the leading non-profit user of FOIA and has been responsible for some of the most important foreign policy disclosures in US history. Many of the releases have been hard-fought— some through the Archive’s 47 FOIA lawsuits. One of those victories led to the 2007 release of the CIA “family jewels,” which revealed a sustained period of illegal CIA actions including wiretapping, domestic surveillance, and assassination plots. Though the law requires agencies to release requested information not more than 20 days after the FOIA request, the CIA withheld the documents for 15 years.
This glacial disclosure schedule is the norm among government agencies. In August, for example, the Archive finally received definitive proof that the CIA was responsible for the 1953 overthrow of Iran’s democratically elected president, Mohammad Mossadeq. This piece of information didn’t threaten current US national security, nor was it particularly surprising to those familiar with Iranian history. Yet the government kept it secret for 60 years. Extreme reticence has characterized the government’s compliance with FOIA since Lyndon Johnson signed the act into law in 1966. Federal agencies have no incentive to release documents proactively, and they often have little reason to release them at all, if not threatened by a lawsuit.
With the election of Barack Obama, however, there was hope for FOIA users. Obama was poised to break the cycle of systematic over-classification at the beginning of his first term.
The new president wasted no time. In a memo sent on his first day in office in January 2009, Obama urged the heads of executive departments to begin disclosing documents freely and proactively. He wrote, “in the face of doubt, openness prevails.” This was a call for a radically new interpretation of the Freedom of Information Act.
Yet his push for departments to adopt “a presumption in favor of disclosure” never led to systemic change. According to a government-wide audit conducted by the National Security Archive in March of this year, 59 out of 100 federal agencies, including all agencies responsible for foreign policy, have failed to adopt a presumption of disclosure in their FOIA regulations.
Still, the president’s new policy had some tangible effects. According to Blanton, documents released in the first two years of Obama’s presidency had fewer redacted segments than those released during the Bush era. Since then, however, redactions have returned to Bush-era levels. “Turnover in White House staff after the first two years meant nobody was in charge of the transparency issue, nobody enforced the Obama policies,” Blanton wrote.
When I was an intern at the National Security Archive in the summer of 2009, hopes for the new administration’s goal of “creating an unprecedented level of openness” were still high. I spent my days there taking apart secondary sources, looking for references to classified documents on the Iraq War and Bush-era torture policy. At the end of my internship, I helped turn the references into FOIA requests for specific documents. I expected those requests to begin producing documents immediately. Four years later, some of them are still in the FOIA backlog. Blanton wrote that the Archive is “still stuck in page-by-page and line-by-line review.”
And with recent large-scale electronic releases, the Archive is having more difficulty keeping up. In the age of Snowden, it’s harder to be a watchdog because there’s so much more to watch.
Despite being unable to fix the over-classification problem, the Obama administration has made significant changes in favor of transparency. It established a regular declassification of the intelligence budget, released the Bush torture memos and reports on warrantless wiretapping, declassified nuclear stockpile statistics, recovered tens of millions of Bush staff emails that would have been destroyed, and ordered the release of taxpayer-funded scientific research.
These are substantial improvements in their own right, but the administration still stands by as the pattern of over-classification intensifies. In his testimony before Congress during the WikiLeaks uproar in 2010, Blanton said, “We have to recognize that right now we have low fences around vast prairies of government secrets, when what we need are high fences around small graveyards of the real secrets.”
Three years later, the enclosures remain vast.