May 21, 2014– There are several directions to take the news that the Obama administration is deciding to release the Justice Department legal memos that were used to legitimize the extrajudicial killing of an American citizen, in this case Anwar al-Awlaki. I don’t have time to follow all the tracks so, at least for now, I’ll confine myself to the issue of what this tells us about openness in this administration.
Barack Obama entered office with a promise to run the most open and transparent presidency in American history. There were some good moves at first–President Obama rode over opposition to the release of an earlier generation of Office of Legal Counsel papers–the ones that justified Bush era torture–and he ordered government agencies to improve public access, FOIA response and the like. The declassification initiatives, at least, are honored in their breach.
The Justice Department drone war memos–for that is what they are–are only returning to the news here. The administration had denied them previously–to the Congress, which has oversight authority and thus a full right to look at them. In each situation where it faced a dilemma over sensitive information like the drone memos, Obama chose to have some official make an informal statement making claims as to information or policy, rather than to expose actual documents to the light of day.
Only when John O. Brennan was up for confirmation as CIA director in 2013, and these specific OLC memos were made a condition for congressional approval, did the wind change. Then the administration took the road of crafting a different document, one summarizing the OLC memos–and making that one public by means of a deliberate leak to a news organization (there are the same people who are now saying that contacts with news media must have official approval). When Congress stuck to its guns, President Obama reluctantly allowed that legislators could view the real documents, but behind closed doors.
The New York Times and others filed Freedom of Information lawsuits seeking the same documents. The American Civil Liberties Union filed a matching lawsuit. That case recently came to decision, and the court ruled that the Obama administration is required to release the material. In fact the judge issued specific instructions on which parts of the documents need to be released in full. The question became whether Attorney General Eric Holder’s Justice Department will pursue an appeal of the judgment.
The complicating factor, as it happens, is another nomination. This time the actual author of the OLC drone war memos, David J. Barron, is up for a seat on the First Circuit of the U.S. Court of Appeals, and senators have threatened to block the nomination unless the administration releases the documents. Guess what? News is that Holder will not appeal. Instead, administration officials are asking for more time to skew the memos by deleting information, and they want to file a more limited appeal for certain sections they would like to keep secret. Thus even when a court rules them out of bounds and a political factor is driving the response, the administration still wants to get its way by playing on the margins and with the timing.
Open administration? Like the Senate torture report, like the FISA court opinions, like the drone memos previously, Mr. Obama’s administration seems never to have met a piece of information it does not deem worthy of keeping secret. If you look at the annual reports of the interagency board that monitors classified information, you’ll also see that the number of things designated secret is rising sharply. The whole system is broken. That’s what needs to be fixed. The CIA is not playing straight on secrecy, the Justice Department is complicit, the White House fails to enforce its own directives. Let’s stop talking about Obama transparency.