Conor Friedersdorf - Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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The Obama Administration's Abject Failure on Transparency

By Conor Friedersdorf

Feb 2 2012, 10:33 AM ET Comment

Assassinations. Warrantless spying. Bush-era torture. The president is determined to hide certain government actions from its citizens.

obama fullness plane.jpg

President Obama promised to bring unprecedented transparency to Washington, D.C. As late as 2010, he told an audience, "I won't stop fighting to open up government." Around the same time, his press secretary asserted that the Obama Administration is the most transparent in American history. Though it pushed for lobbying disclosure, urged earmark-request disclosure, and willingly made White House visitor logs available, Obama's first term has in fact been rife with just the sort of opacity that breeds corruption, obscures misdeeds, and undermines public trust in government. Far from being praiseworthy, the prevailing executive-branch attitude toward secrecy is an abomination, as is evident from even a cursory look at its real-world manifestations.

SECRECY AND ASSASSINATIONS

Killing American citizens with drones is the most extreme action that the Obama Administration takes in secret. President Obama insists that he is empowered to secretly kill anyone whose name appears on a secret list he keeps. The guilt of the people on the list is presumed based on secret evidence assembled by a secret group of government officials who meet in secret. The strikes are subsequently carried out by secret agents in the Central Intelligence Agency. As if that Orwellian spectacle, bereft of checks and balances, weren't invitation enough to abuses, the government won't even reveal the legal reasoning that supposedly justifies its suspension of due process, even for American citizens. That too is deemed a secret.

On Wednesday, the ACLU filed a lawsuit challenging the status quo. It demands to know how the U.S. government adds names to its kill list; the standards under which Americans may be killed without due process; and the evidence that persuaded the government its protocols had been met in drone killings past. Perhaps most alarming is the possibility that the Obama Administration has killed American citizens and kept mum about it. There's no evidence that they've done so. At the same time, they claim that right, without ever citing legal arguments to justify it.

SECRECY AND DETAINEE ABUSE

During the Bush Administration, the United States government tortured people. It subjected detainees to physical abuse. It arrested and jailed people for years on end without charges or trial. It did this to terrorists, and to innocent people falsely accused of being terrorists too. It operated a network of secret prisons, and sometimes turned detainees over to foreign governments that torture. It broke multiple laws, perpetrated countless injustices, and victimized various innocents.

The Obama Administration now presides over the government being sued by these detainees, including the innocents that America unlawfully and immorally wronged. Rather than contesting their lawsuits on the merits or offering settlements, however, Team Obama is routinely invoking the state-secrets privilege -- a tactic Senator Obama criticized -- in effect saying that the lawsuits must be dismissed because fighting them on the merits would threaten national security. The Obama Administration is also preventing the release of federal investigations into detainee abuse during the Bush Administration. As the ACLU puts it, "There is no obvious security justification for withholding information about the CIA's use of unlawful and unauthorized interrogation techniques, and we are especially troubled by the CIA's continued practice of keeping secret the names of the prisoners it detained. Even now, a decade after 9/11, we still don't know all of the prisoners held by the CIA, why they were held, for how long, or what happened to those released." Summing up, the abuses spawned by Bush-era secrecy are being kept secret by a new administration that invokes the same problematic secrecy standards.

SECRECY AND THE WAR ON WHISTLEBLOWERS

President Obama has charged more would-be whistleblowers with violating state secrecy laws than all previous administrations combined. In one case, exhaustively chronicled by Jane Mayer in The New Yorker, the Obama Administration aggressively went after Thomas Drake, a former NSA employee, who blew the whistle on former colleagues who he regarded as harming national security. As Glenn Greenwald noted:

Drake's leak involved no conceivable harm to national security, but did expose serious waste, corruption and possible illegality. When Drake was indicted back in April, 2010, I wrote at the time: "the more I think about this, the more I think this might actually be one of the worst steps the Obama administration has taken yet, if not the single worst step -- and that's obviously saying a lot." The effect of prosecuting Drake with multiple "espionage" counts, threatening him with decades in prison, and financially ruining him is clear: to frighten future whistleblowers into silence, and thus enable the government and the National Security State to do whatever it wants free of one of the only true checks it has. That's what makes Obama's War on Whistleblowing so pernicious.

Another problematic case involved New York Times reporter James Risen, to whom President Obama owes a special debt of gratitude. After all, Obama might not be in the White House today if the Bush Administration had succeeded in keeping all its secrets: the torture, the detainee deaths, the abuses at Abu Ghraib, the spying on Americans, the faulty pre-war intelligence in Iraq, and all the rest. One would have expected Obama of all people to see the value in Risen's national-security reporting -- the real ways in which he has helped to preserve civil liberties, American freedom, and accountability in government -- and to weigh that against the national security implications of his 2006 report on a bungled CIA effort to harm Iran's nuclear capabilities in 2000. Instead, the Obama Administration threatened Risen with the prospect of jail if he didn't reveal his whistle-blower source. A lengthier description of the case is here.

There are other examples too.

SECRECY FOR THEE BUT NOT FOR ME

Adding to the perniciousness of the Obama's attitude toward state secrets is the self-serving double-standard he employs. It is difficult for members of Congress to even discuss our secret drone program, because its very existence is classified. Federal agencies won't even confirm that it exists.

Says the ACLU:

This response is incredible, in the original sense of that word--it simply lacks credibility. The press has reported since early 2010 that Anwar al-Awlaki had been placed on "kill lists" maintained by the CIA and JSOC, and articles have discussed in detail the secret process by which he was placed there. After the killings of the three U.S. citizens last fall, newspapers reported extensive details about the strikes, including how the CIA and JSOC coordinated and the number of drones involved. The Times described a "secret" OLC memo that lays out the Administration's legal justifications for placing al-Awlaki on the kill lists and killing him. Much of the reporting was based on statements by government officials, albeit officials who were unwilling to be quoted for attribution.

Some officials, including President Obama, have spoken on the record about the program. They have publicly claimed responsibility for killing al-Awlaki, and they have more generally defended the government's right to kill citizens after a secret non-judicial process. Just last week, Secretary of Defense Leon Panetta acknowledged on 60 Minutes that the U.S. can and does carry out targeted killings of U.S. citizens subject to the recommendations of the CIA Director and the Secretary of Defense and pursuant to the President's authorization. And this week, President Obama publicly defended the CIA targeted killing program in a live internet interview...Officials cannot be allowed to release bits of information about the targeted killing program when they think it will bolster their position, but refuse even to confirm the existence of a targeted killing program when organizations like the ACLU or journalists file FOIA requests in the service of real transparency.

The Washington Post covered an attempt to call Obama out on this double standard, and the response was telling. Here's the relevant excerpt from the story:

White House spokesman Jay Carney rebuffed questions Tuesday about whether President Obama had violated intelligence restrictions on the secret U.S. drone program in Pakistan when he openly discussed the subject the day before. Obama, speaking Monday at an online town hall sponsored by Google, twice uttered the word "drones" as he explained their precise and "judicious" use against al-Qaeda targets. Asked if the president had made a mistake, Carney said he was "not going to discuss... supposedly covert programs."
He suggested that nothing Obama had said could be a security violation: "He's the commander in chief of the armed forces of the United States. He's the president of the United States."

That's the attitude in the executive branch: how could he violate secrecy laws, he's the president! There really is this attitude that the guy sitting in the Oval Office is above the law, so much so that he acknowledges the existence of a secret drone program one day, and the next day his press secretary says he is "not going to discuss... supposedly covert programs," absurdly acting as if there is any doubt about its existence. Contrary to its claims, the Obama Administration just may be the least transparent in American history. For obvious reasons, it's impossible to know for sure.

Image credit: Reuters