How the "Most Transparent Administration in History" Undercut FOIA and Covered Up Torture

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The nonpartisan organization Cause of Action has a new report out for Sunshine Week, "Grading the Government: How the White House Targets Document Requesters." The report includes an April 15, 2009 email Cause of Action obtained last year from the Justice Department written by then White House counsel Greg Craig.

Craig's email, distributed to all "executive department and agency general counsels," instructed the officials to first “consult with the White House Counsel’s Office on all document requests that may involve White House equities. We ask that such consultation take place well in advance of the deadline for responding.”

“This need to consult with the White House arises with respect to all types of document requests, including Congressional committee requests, [Government Accountability Office] requests, judicial subpoenas, and FOIA requests,” Craig wrote. “And it applies to all documents and records …”

A couple of publications seized upon the email to show "the Obama White House effectively amended the [Freedom of Information Act] to create a new exception to justify keeping public documents locked away from the public."

Craig's email was written three months after President Obama issued an executive order promising to make the federal government more transparent and instructions to all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act (FOIA) requests.

"The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama's executive order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."

Attorney General Eric Holder issued new FOIA guidelines for government agency's in March 2009 later that said "FOIA is to be administered with the presumption of openness called for by the President." 

Craig's email is troubling because it smacks of politicization of the FOIA process. Last July, this issue came up when my own FOIA request revealed the 95 FOIA requests that the Pentagon had to first approve because the documents at issue may attract media attention. The Pentagon policy was also revealed by Cause of Action. 

Nate Jones of George Washington University's National Security Archive told me at the time, “FOIA officers should be trained to review documents for exemptions and release them solely on that criteria without politicization from higher ups."

Craig's email and the Pentagon policy are just two recent examples of how Obama broke his own transparency promises on Day One.  

Here's another noteworthy episode from that moment in time that's worth revisiting. It pertains to an issue we're still confronting today: torture. 

Broken Promise

In May of 2009, a month after the White House said it would not fight the release of the infamous torture memos, which the American Civil Liberties Union sought under a wide-ranging 2003 FOIA request related to the treatment of "war on terror" prisoners in custody of the military and CIA, Obama publicly said he would abide by a federal judge's order and would not challenge the release to the ACLU of about 44 photographs depicting the torture of prisoners in Iraq and Afghanistan. 

The U.S. District Court for the Southern District of New York ordered the release of the photos in a June 2005 ruling that was affirmed by the Second Circuit Court of Appeals in September 2008. The appeals court shot down the Bush administration's attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as "an all-purpose damper on global controversy" and "an alternative classification mechanism." 

But as soon as Obama made the announcment he was pilloried by the likes of Senators Lindsey Graham and Joe Lieberman and Dick Cheney and his daughter Liz who accused him of endangering the lives of U.S. military personnel in Iraq and Afghanistan. The blowback was so fierce that Obama immediately backtracked on his previous commitment and vowed to fight the release of the photographs all the way to the Supreme Court. 

Obama made good on that promise in August 2009 when then-Solicitor General Elena Kagan filed a 33-page petition with the high court seeking to block the release of the photographs. 

The petition said the 44 images at issue included one in which a female solider pointed a broom at one detainee "as if I was sticking the end of a broom stick into [his] rectum." Other photos at issue show US soldiers pointing guns at the heads of hooded and bound detainees in Iraq and Afghanistan. Publicly, Obama said that he thatt his decision to block the release of the photographs stemmed from his personal review of the images and his concern that their release would endanger American soldiers in Iraq and Afghanistan. 

Kagan argued in the petition that a specific provision of FOIA allows the withholding of information if it threatens the lives of individuals.

The petition says that the Second Circuit Court of Appeals ruled that FOIA "mandates the public disclosure of such photographs - regardless of the risk to American lives - because FOIA Exemption 7(F) requires the government to 'identify at least one individual with reasonable specificity' and show that disclosure 'could reasonably be expected to endanger that individual.'"

Kagan wrote that the Second Circuit Court of Appeals misinterpreted the law when it ruled that the government had to identify specific individuals who would be harmed by the disclosure of the photographs

The Obama administration argued that Exemption 7(F), "is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to 'any individual,' with no suggestion of the court's extra-textual requirement of victim specificity. The history of drafting that exemption "underscores that conclusion. Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals - particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions."

"The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action," the brief states. "There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation's military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure."

The ACLU said in its opposition brief that the Obama administration's "argument here would turn FOIA on its head by affording the greatest protection from disclosure to records that depict the worst governmental misconduct."

While the Obama administration was petitioning the Supreme Court then-White House Chief of Staff Rahm Emanuel was quietly working with Lieberman and Graham on legislation to tweak FOIA in the event the Justices shot down the administration's arguments. 

Earlier, in June 2009, the Senate unanimously passed the Detainee Photographic Records Protection Act, an amendment to the supplemental appropriations spending bill sponsored by Lieberman and Graham. The amendment included a provision to FOIA that authorized the Secretary of Defense to prohibit the release of the abuse photographs at issue as well as any videos for three years and renew it for three-year intervals thereafter.

A footnote to Kagan's petition to the Supreme Court said Obama "recently informed the sponsors of the pending detainee photograph legislation that he 'support[s] this legislation' and 'will work with Congress to get it passed.'" 

In a floor speech before the appropriations bill was passed, Graham said Emanuel assured him that the abuse photographs would never "see the light of day" and that, if necessary, Obama would sign an executive order if the Supreme Court refuses to take up the case, ruled against the administration or if Congress failed to pass legislation with an amendment banning the disclosure of the images.

"I wanted to be assured by the administration that if the Congress fails to do its part to protect these photos from being released, the President would sign an Executive order which would change their classification to be classified national security documents that would be outcome determinative of the lawsuit," Graham said on June 17, 2009. "Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day, but they agree with me that the best way to do it is for Congress to act."

The Obama administration indicated it would drop its Supreme Court peition if Congress successfully changed FOIA.

Months later, after Congress returned from its summer break, lawmakers took up the spending bill and it passed in both Houses. The Supreme Court was ready to take up the issue but agreed, on a recommendation by the White House, to hold off to determine if Congress would act on the issue. 

Rep. Louise Slaughter, a Democrat from New York, said in a floor statement that the provision to amend the Freedom of Information Act was stripped from an earlier version of the bill, but the language was quietly reinserted in recent weeks, "apparently under direct orders from the administration."

In November 2009, then-Secretary of Defense Robert Gates formally invoked the new powers granted to him by Congress authorizing him to circumvent FOIA and keep the torture photographs the ACLU sought under wraps on national security grounds.

In a brief filed with the US Supreme Court, then-Department of Defense General Counsel Jeh Johnson, and Kagan, said Gates “personally exercised his certification authority” to withhold the photos and “determined that public disclosure of these photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States."

“Based on that determination, the Secretary has concluded that the photographs are ‘protected documents’” and are “exempt from mandatory disclosure under FOIA,” the government's brief said.

In his certification included with the filing, Gates said his decision to withhold as many as 2,000 pictures of detainee abuse and torture was based "upon the recommendations of the Chairman of the Joint Chiefs of Staff [Michael Mullen], the Commander of U.S. Central Command [David Petraeus], and the Commander of Multi-National Forces-Iraq [Ray Odierno]..."

Since then, the Obama administration has continued to conceal evidence of torture that took place under the Bush administration. Last week, McClatchy Newspapers reported that the White House "has been withholding for five years more than 9,000 top-secret documents sought by the Senate Select Committee on Intelligence for its investigation into the now-defunct CIA detention and interrogation program."

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