Is Obama following Bush's lead on official secrecy?

McClatchy NewspapersFebruary 11, 2009 

WASHINGTON — The Obama administration, which vowed to usher in a "new era of openness in our country," either has delayed action on requests for access to government records or refused to disclose them in three early, high-profile tests of the pledge.

This week, Justice Department lawyers announced that they'd continue to assert the state secrets argument made by the Bush administration in a lawsuit alleging that five men were tortured abroad in U.S.-run prisons.

In a separate case, the Obama Justice Department has agreed with the Bush administration — at least initially — that the news media shouldn't have immediate access to court records in the ongoing Guantanamo detainee litigation.

In another example, the administration on Wednesday told the American Civil Liberties Union that it needed more time to decide whether to release undisclosed Bush Justice Department memos that justified harsh interrogation practices. A federal judge already had given government lawyers more time in the matter, which has been pending for five years.

"It looks like the new administration is stalling for time," said Jameel Jaffer, the director of the ACLU's National Security Project. "They've offered a very public commitment to transparency, but so far that has not translated into action."

Justice Department officials say they intend to be more open than the last administration was, but that they need more time to find the right balance between openness and security.

"This administration is committed to ensuring the American people have access to information they have a right to know," said Matthew Miller, a Justice Department spokesman.

In response to the outcry over the state secrets argument, the Justice Department promised to review other cases to ensure that the Bush administration has asserted such claims properly.

In addition, President Barack Obama — on his first full day in office — urged government agencies to be more transparent when they were deciding which documents to release under the Freedom of Information Act.

As part of his order, Obama instructed Attorney General Eric Holder to come up with new guidelines that would encourage openness. Holder, however, has been in office only a week, and many of the political appointees under him have yet to be confirmed.

Advocates of reduced government secrecy concede that the administration has been consumed by the growing economic crisis since Obama took office three weeks ago. They point out, however, that the president described timely access to government records as crucial in fostering the public's confidence in the economic rescue efforts, which now reach into the trillions of dollars.

The delays also come as the new administration has pledged to reverse many of the Bush administration's anti-terrorism policies. Critics of the previous administration say that immediate access to a collection of memos written by the Justice Department's Office of Legal Counsel is needed to determine what changes might be necessary.

While Holder promised during his confirmation hearings to undertake a wider review of those memos, the ACLU's Jaffer said the "questions about accountability and responsibility are the subject of public debate right now. Getting these memos months from now is not going to be helpful."

On Wednesday, the Justice Department asked a federal judge for 90 days to decide whether to release three of the dozens of secret memos sought by the ACLU, a request that Jaffer called unacceptable considering the number of documents.

"We're not just asking for access," he said. "We're asking for timely access."

Justice Department officials told the ACLU in a letter that they intend to "proceed consistent with the principles" outlined in Obama's order for more transparency. However, the lawyers added that they also had to weigh "the legitimate confidentiality interests of the executive branch and the national security interests of the United States."

Jaffer called it a "nonresponse response."

In the Guantanamo issue, Justice Department lawyers have asked a federal judge to deny a request by the Associated Press, The New York Times and USA Today for copies of sealed documents that the government filed in the Guantanamo cases.

The news organizations have asked for what they describe as unclassified records detailing the government's justifications for keeping the detainees in Guantanamo.

Michael Hertz, the acting assistant attorney general, told the judge that the records couldn't be released because the department needs to protect information that was wrongly identified earlier as unclassified.

Hertz also asserted that the media have a guaranteed right to access only in criminal proceedings, not in civil proceedings such as the Guantanamo cases, a stance that government-access proponents consider extreme.

"Neither the First Amendment nor the common law creates a right of access to judicial records in civil proceedings in general or in these habeas corpus proceedings," Hertz wrote in his Jan. 30 brief.

Although Hertz said the Justice Department wasn't asking for the records to be withheld indefinitely, he urged the judge to continue to keep them secret as "protected information."

David Schulz, a lawyer for the news organizations, characterized the position as "the same extreme and insupportable positions that the Bush administration took about the supposedly narrow scope of the constitutional right of access."

Schulz said that courts across the country had agreed that the public's right to access government records extended beyond criminal cases.

"I find it impossible to believe that this will be the position actually adopted by the Obama administration when they have an opportunity to really look at these cases," he said.

Civil libertarians have expressed the greatest outrage, however, over Monday's announcement that the Justice Department would maintain the Bush administration's position that the lawsuit alleging torture must be dismissed because it undermines national security.

Meanwhile, a bipartisan group of lawmakers in the House of Representatives and the Senate introduced legislation Wednesday that would give federal courts more legal authority when they review such claims by the Justice Department.

"While national security must be protected, there must also be meaningful oversight by the courts and Congress to ensure the executive branch does not misuse the privilege," said Republican Sen. Arlen Specter of Pennsylvania.

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McClatchy Newspapers 2009

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