FILE – In this March 31, 2011, file photo House Oversight and Government Reform Committee Chairman Rep. Darrell Issa, R-Calif., right, seen with the committee’s ranking Democrat Rep. Elijah Cummings, D-Md., presides over the committee’s hearing on the Freedom of Information Act on Capitol Hill in Washington. Acting on his promise to reinvigorate FOIA on his first day in office, President Barack Obama told all federal agencies to adopt a “presumption in favor of disclosure”. (AP Photo/Carolyn Kaster, File)
WASHINGTON (AP) — It’s as if the United States has two governments, one open and one very much not. President Barack Obama leads both, trying not to butt heads with himself.
Since becoming president, Obama has churned out an impressive stream of directives flowing from his promise to deliver “the most transparent administration in history.”
He established a center devoted to declassifying records and making them public. He announced an open government initiative. Dizzying quantities of information poured into public databases. New ways were devised to show taxpayers how their money is spent. Allegiance was pledged to the rule of law.
Then there’s the other government.
It prosecutes leakers like no administration before it. It exercises state-secrets privileges to quash court cases against it. It hides a vast array of directives and legal opinions underpinning government actions — not just intelligence and not all of it about national security.
Now it’s known to conduct sweeping phone-records and Internet surveillance of ordinary people in programs kept on the lowdown until an employee of a National Security Agency contractor revealed them.
Dick Cheney said this would happen.
Known as the master manipulator of power behind the scenes as George W. Bush’s vice president, Cheney predicted at the dawn of Obama’s presidency that the relentless campaign criticism of shadowed government would not come to much.
“My guess is, once they get here and they’re faced with the same problems we deal with every day, that they will appreciate some of the things we’ve put in place,” he said. “They’ll need all the authority they can muster.”
The empire of secrets lives on.
Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, says the U.S. has both the most open government in the world and arguably the most closed. Daily it publishes an unmatched avalanche of information. But daily its national security secrets also grow by staggering amounts.
Early on, there were signs Obama would not upend the fundamental balance of this parallel universe despite his pledges to take the government in a new, open direction.
Glasnost on the Potomac would have to wait.
One sign: Obama’s 2009 marching orders for classifying documents closely resembled those of his predecessors at least back to Ronald Reagan.
Also, a 2011 review of the Obama administration’s handling of public records requests under the Freedom of Information Act noted the many positive words from the president and his people about striving for a culture of disclosure. This included an executive order on his first day in office. But the review came to this jarring conclusion when actions were measured against words: “Most indicators of openness have not even returned to the average for the Bush years, a period known for secrecy.” The report was by OMB [auth] Watch, now called the Center for Effective Government.
On the bright side, Aftergood says, the government puts more and better information online than ever before. But at the core, “Classification activity is very high. Secrecy has become an obstacle in many areas of public policy. And we still are living with a classification system that is a legacy of the Cold War era.”
If President Dwight Eisenhower were around today, he says, “he would have no trouble understanding how the classification system works. He would feel quite at home. The rest of us feel like we’re living in a ‘Flintstones’ episode.”
The secret side of government has many pillars, some fashioned with a compliant Congress, others raised from within.
A look at some, and the weird politics swirling around them:
WHICH SIDE ARE YOU ON AGAIN?
In the suddenly unfolding debate over secrecy in government, it takes a spreadsheet to know who stands where. The normal partisan divide that cleaves almost everything else in Washington is no guide. Obama at times seems to be on both sides at once.
In one corner, there’s Democrat Dianne Feinstein of California, who leads the Senate Intelligence Committee, tag-teaming with Republican John Boehner of Ohio, the House speaker. Both are steaming over the actions of Edward Snowden, the NSA contractor who leaked the surveillance programs. “Treason,” said Feinstein. “Traitor,” said Boehner. National security hawks in both parties agree.
In the other corner, an unusual collection of liberals, civil libertarians and conservatives suspicious of government’s reach is aligned against Big Brother. The American Civil Liberties Union, tea party favorites and dyed-in-the-wool progressives are these odd bedfellows.
“It’s my fear that we are on the verge of becoming a surveillance state,” said Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee.
Some other Democrats, too, are proving hostile to the administration on this. Sens. Ron Wyden of Oregon and Mark Udall of Colorado have dogged the administration to back off what they see as an assault on civil liberties and challenged its claims that the telephone and email monitoring programs helped stop specific acts of terrorism.
The debate places them and some other congressional critics in an awkward spot.
Intelligence committee members are briefed on certain national security secrets but not allowed to talk about them. That has left Udall, for one, champing at the bit. He told The Denver Post he was well aware of the monitoring programs that shocked lawmakers who hadn’t been clued in and did “everything short of leaking classified information” to bring it to light.
As a candidate, Obama criticized Bush for putting forward a ‘false choice between the liberties we cherish and the security we provide.” Now he says, “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience,” and, “We’re going to have to make some choices as a society.”
SECRET DIRECTIVES AND PRIVILEGES
These tools have been used just as vigorously as in the Bush years, watchdogs say, despite modest steps toward accountability.
The state-secrets privilege helps the government withhold sensitive national security records in court proceedings. But in its 2013 review of Obama’s first term, the Center for Effective Government says both the Bush and Obama administrations used the privilege to dismiss entire cases against the government, not just protect specific records.
The government also operates with a range of regulations, legal opinions and policy directives that never see the light of day.
Targeted drone killings, the recently leaked phone and email surveillance programs, and a former Bush program of warrantless wiretapping came from these shadows.
“The administration has continued to use secret ‘laws’ to make controversial decisions without oversight, to disallow legal challenge, and to withhold key decisions and memoranda that have the force of law from public scrutiny,” the center says.
Certain actions are subject to court scrutiny but it’s a court like none other. The Foreign Intelligence Surveillance Court hears cases inside vaults in a federal courthouse. Legal justifications are classified, there’s no lawyer countering the government’s case for authority and the decisions are rarely made public.
In one step toward openness, the Obama administration has disclosed some secret legal opinions, but only those from the previous administration, regarding the treatment of terrorist detainees and some other matters specific to the Bush years.
LOOSE LIPS SINK SHIPS
The Obama administration has pursued an unprecedented number of investigations of those who leak government secrets and taken extraordinary steps in doing so. Among them are the secret seizure by the Justice Department of two months of phone records for more than 20 Associated Press telephone lines and the gathering of emails of Fox News journalist James Rosen, in both cases to try to identify sources of stories.
At the same time, a 2012 law signed by Obama improved protections for whistle-blowers, generally understood to be those in government who expose waste, fraud or abuse. Spillers of national security secrets needn’t apply.
All governments always have kept secrets on the grounds that sensitive information cannot fall into the hands of adversaries and that frank discussions among nations and inside the government must stay confidential until they no longer matter. But history is rife with secrets kept for political purposes, to conceal corruption and simply to avoid inconvenience or embarrassment.
The sensational leak of the classified Pentagon Papers in 1971 revealed pernicious efforts to mislead the public on the depth of U.S. involvement in Southeast Asia. Cascading revelations in that time laid bare domestic spying to disrupt civil rights and anti-Vietnam War protests, assassination plots against foreign leaders and a campaign of character assassination against Martin Luther King Jr.
Now the court martial of Army Pfc. Bradley Manning is addressing how grave were the secrets he revealed when he supplied WikiLeaks with more than 700,000 classified battlefield reports, diplomatic cables and video clips while working as an intelligence analyst in Iraq. His lawyers contend damage was minimal. The government argues the revelations included extraordinarily sensitive information that endangered lives — revealing troop movements, code words, the names of suspects under investigation and much more — and that some of it ended up in the hands of Osama bin Laden.
FOR YOUR EYES ONLY
Classified government documents fall into one of three big categories: confidential, secret and top secret. Beyond that, though, is a plethora of subclassifications.
The government is awash in “sensitive but unclassified” material, information that doesn’t meet the standard for national security classification but is touchy enough to warrant some level of protection. Each agency has had its own system and the result, of course, has been a mess: several hundred unique classifications or labels that sound official, mean little and confuse everything.
Obama ordered the administration in 2009 to speed up declassification, standardize the hodgepodge and restrain the bureaucratic tendency to mark records with more confidentiality than they deserve. But the rules deliberately left plenty of wiggle room, and there’s been a lot of wiggling. The essential tenets of secrecy remained unchanged.
Obama specified that those who assign classification levels to federal records should, by default, pick the least restrictive category, not automatically bump it up, absent serious doubt about what to do.
Aftergood chuckled over that one. “That does not translate into an instruction that has any teeth.”
“Classifiers,” he said, “they do not sit, Hamlet-like, and wonder whether or not they should classify. They aren’t crippled by doubt.”
In other words, they do the safe thing and classify, classify and overclassify.
That’s why the vast ocean of classified information is swimming with oh-so-ordinary material — rehashes of newspaper clippings, bland diplomatic cables conveying information anyone can find online, summaries of foreigners’ public speeches and the like — as well as the juicy stuff. It costs billions a year to keep it all under wraps.
Now, it has emerged that some of Obama’s political appointees are using secret government email accounts to conduct official business. This practice raises questions about how agencies can fulfill their legal obligation to find and share official emails in congressional inquiries and under public records requests.
As for the Freedom of Information Act pipeline, an AP analysis in March found that the Obama administration last year answered more requests from the public to see government records than ever before. But it also turned more frequently to legal exceptions to censor or withhold material. It turned over all or parts of the records in about 65 percent of all requests and fully rejected more than one-third, an uptick from 2011.
PERIODS OF SUNSHINE
Watchdogs credit Obama with progress on some fronts: the first public accounting of the nuclear arsenal, more public detail on intelligence and national security “black budgets” that still remain largely hidden from view, disclosure of the numbers of people with security clearance, and more. The government puts out more information on nonclassified government operations than before and makes it easier to find and understand.
User-friendly websites have been the primary vehicle, augmented by sophisticated, if sometimes unwieldy, databases and gobs of social media chatter. At ethics.gov, for example, it’s now possible with a few clicks to see lists of White House visitors and whether they were campaign contributors.
Moreover, each agency was directed to put an open-government plan in place. The results have been mixed.
NASA, an agency that depends on public outreach more than many others to keep support for its budget, rose to the occasion with all sorts of plans to increase access to scientific data, crowd-source research and keep people on top of what it’s doing.
Closer to the levers of power, token steps were more the norm. In the estimation of open-government advocates, the heavy-lifting Justice Department did not transform transparently.