THE BLOG
06/18/2009 11:40 am ET Updated May 25, 2011

The Challenge Of Transparency


by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Ali Frick, Ryan Powers, and Ian Millhiser

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Promising that "transparency and the rule of law will be the touchstones of this presidency," President Obama announced on his second day in office that he would usher in "a new era of openness in our country." As a senator, Obama spearheaded legislation that allowed ordinary Americans to track government spending via USASpending.gov. A subsequent bill he introduced would have improved this website and increased the disclosures required by government contractors. As President-elect, Obama created Change.gov, which allowed anyone with an Internet connection to submit questions to the transition team and posted documents provided to the incoming administration by outside lobbying groups. More recently, however, the Obama administration has stumbled on its way to ensuring that government is transparent and accessible.

A PROMISING START: On his first full day in office, Obama issued a memorandum to all heads of departments and agencies directing them to "harness new technologies to put information about their operations and decisions online and readily available to the public." The centerpiece of this memorandum was a directive to his Chief Technology Officer (CTO) to come up with a set of recommendations within 120 days "that instructs executive departments and agencies to take specific actions" to ensure transparency in government. Although the deadline for the CTO's recommendations was effectively extended due to delays in appointing that officer, the White House has already created a number of websites designed to keep Americans informed about their government. Some examples include Recovery.gov, which allows Internet users to track stimulus spending and report possible fraud, waste or abuse; the Open Government Initiative; and Data.gov, which allows users to to search non-sensitive government databases. Additionally, the White House has engaged the public on a variety of open media sites, such as Youtube and Flickr. Quoting Justice Louis Brandeis's maxim that "sunlight is the best disinfectant," the President also reversed a Bush administration policy of hostility to Freedom of Information Act (FOIA) requests, ordering the Attorney General to establish new FOIA guidelines applying "a clear presumption: In the face of doubt, openness prevails." Other transparency initiatives have ranged from eliminating illogical Bush-era restrictions (for instance, the Vice President's residence is now unobscured on Google Maps) to revealing the kinds of transgressions that cast doubt on our very humanity -- the torture memos. Despite conservative claims that revealing the widespread human rights abuses of the Bush regime would somehow endanger American lives, Obama determined that the best way to move beyond that "dark and painful chapter in our history" was to disclose the inexcusably shoddy legal reasoning of lawyers who ignored both the law and their own ethical duties as attorneys to justify practices such as "waterboarding."

NEW VEIL OF SECRECY: For all of the administration's promising early steps to restore transparency and accountability, however recent developments are less encouraging. Some of these stumbling points have been simple failures of implementation; many of the administration's budget transparency websites, for example, publish inconsistent numbers. Other transparency failures, however, suggest a more disturbing trend. Despite promises to end "secret meetings" and restore the White House as the "people's house," the administration has refused to disclose the names of individuals who have visited the White House since Obama took office, while echoing similar excuses by Bush administration officials who wanted to hide secret meetings with energy industry executives. But most disturbing are recent, tenuous invocations of "national security" to cast a shade over government transparency. After the Environmental Protection Agency uncovered nearly four dozen toxic coal ash sites in Tennessee that "could cause death and significant property damage if an event such as a storm, a terrorist attack or a structural failure caused them to spill into surrounding communities," the administration choose to keep the locations of the toxic sites secret from Tennessee residents because of fears that such disclosure could present a "security risk." Similarly, despite earlier disclosure of the infamous torture memos, the Obama CIA has thus far successfully kept secret a comprehensive account of that agency's interrogation practices. Although a heavily redacted version of the report was uncovered by the ACLU, the administration insists that disclosing the full report would endanger national security. Even more alarming, however, is the Obama administration's adoption of Bush's "state secrets" claim in court cases dealing with issues ranging from extraordinary rendition to warrantless wiretapping. The "state secrets" privilege allows the administration to withhold information in a lawsuit or even dismiss the suit altogether if the subject matter of the suit could potentially reveal information that puts national security at risk. In one suit, brought by an Islamic charity challenging the previous administration's warrantless wiretapping program, a federal judge finally threatened sanctions against the Justice Department if it did not comply with an order to turn over a document to the plaintiff's attorneys. Incidents such as these led the New York Times to lament that Obama has "backtracked, in substantial if often nuanced ways, from the approach to national security that he preached as a candidate, and even from his first days in the Oval Office."

THE ROAD AHEAD: Three upcoming benchmarks will provide an important window into how the White House plans to move forward on transparency. One is tomorrow's deadline for Americans to submit their comments on government transparency to the President's Open Government Initiative. In the coming week, the administration will begin the process of "crafting constructive proposals" based in part on comments submitted to the Initiative. A second is deciding how the White House regards legislation, such as the Open FOIA Act, which limits the Executive Branch's authority to rely on ambiguous laws to justify denying FOIA requests. Finally, Attorney General Eric Holder told the Senate Judiciary Committee yesterday that a long-awaited DOJ report on ethical violations by torture advocates such as John Yoo and Judge Jay Bybee is "weeks away." Holder promised to publish "as complete a report as we can" without revealing information that should remain classified. Whether the administration will declassify enough of the report to provide a full picture of the former Justice Department officials' transgressions remains to be seen. However, full disclosure of their actions will not only serve the Obama administration's stated goals of fostering "transparency and openness," it will revive the now-dormant possibility of accountability for some of torture's chief advocates, at least one of whom still sits in judgment of others' transgressions as a lifetime appointee to the U.S. Court of Appeals for the Ninth Circuit.