Shining the light on presidential secrecy

Tuesday, March 24, 2009

  • See video of FOI Day 2009 events

    Panelists explored the recent past and previewed the future of government transparency as part of the 11th annual National Freedom of Information Day Conference March 13 at the Newseum.

    David Vladeck

    Georgetown Law Professor David Vladeck gave opening remarks on “The Last Eight Years: Freedom of Information in the Bush Era,” criticizing the Bush administration’s level of openness.

    “Bush will go down as a secrecy president,” he said.

    Vladeck pointed out that the default rule in past administrations was that government information would be released unless there was “foreseeable harm” from its availability. However, he said that with the advent of the Bush administration, there were several shifts in the government’s attitude toward freedom of information. Two examples he noted were the moves to close deportation hearings and to close several Environmental Protection Agency libraries.

    After the Sept. 11, 2001, terrorist attacks, Vladeck said, the administration seemed to feel more justified in withholding information.

    “The message to agencies seemed to be ‘don’t worry about the legal basis for withholding information — at this point the ends justify the means,’” he said.

    Vladeck said that during the Bush administration, he defended several journalists who were in trouble with the government over publishing classified information.

    “The government was completely unapologetic [in its pursuit of the journalists],” Vladeck said. “They basically said that ‘government cannot operate effectively if you’re looking over our shoulders … . Leave us alone.’”

    Meredith Fuchs

    Following Vladeck’s initial comments, Meredith Fuchs, general counsel for the National Security Archive, moderated the panel discussion. Panelists participating were Mike German, policy counsel on national security for the American Civil Liberties Union; Mark Tapscott, editorial page editor for The Washington Examiner; Richard A. Samp, chief counsel for the Washington Legal Foundation; and Rena Steinzor, professor of law at the University of Maryland.

    Steinzor primarily discussed the handling by the administration of critical infrastructure information, and she mentioned an example in which a map of environmental clean-up areas was unavailable because the location was also an army base.

    Referring to a quote from Judge Damon Keith of the 6th U.S. Circuit Court of Appeals, Steinzor said, “Democracy dies behind closed doors.” (See Detroit Free Press v. Ashcroft.)

    Tapscott countered some of the criticism of the Bush administration and noted that President Bush signed the Federal Accountability and Transparency Act during his time in office.

    “I don’t think that things were as bad as we in the transparency community, based on history, seem to think given the context of a war,” he said.

    Tapscott also warned of being too optimistic about the Obama administration.

    “We can have big government, and we can have open government, but we can’t have both,” he said. These two cannot exist together, Tapscott said, because with a big government, there is more reason for the administration to concern itself with looking as good as possible.

    Although the ACLU’s German acknowledged some truth in Tapscott’s assertion, he emphasized that secrecy is never good.

    “Some secrecy is necessary, but we forget that while secrecy is necessary, it is an evil,” he said.

    From left: Rena Steinzor, Mark Tapscott, Mike German and Richard Samp

    German discussed that all branches of government need to have access to information, particularly in the national security realm, to maintain appropriate checks and balances.

    “Transparency promotes accountability, and that accountability improves effectiveness,” he said.

    Samp wrapped up the panelists’ discussion by saying that going to court is not the most effective way to get information from the government.

    “At the end of the day, this information gets out,” he said.

    In their closing observations, panelists emphasized a need to look back and to exercise more tools of accountability.

    “The accountability muscles haven’t been used as much [in the recent past], and hopefully they will be,” German said.

    Vladeck concluded his remarks by maintaining his position that the Bush administration employed too much secrecy.

    “I think that the nation needs a better accounting of what took place in the Bush administration, and the Obama administration so far has made most controversial information available,” he said.

    He also emphasized the steps he believes are necessary to make the government more transparent, such as initiating congressional investigations of the executive branch, and more importantly, revising FOIA. Vladeck commented that FOIA was written before much of today’s technology was available, and said that the challenge would be to modernize it.

    “How can we get it to where we do not have to go through the time and expense of what is now an archaic procedure?” Vladeck asked. “It is the right system for paper records, but that’s not the future.”

    Fuchs closed the program’s panel by encouraging people to think about what priorities the Obama administration should have in terms of government transparency and how those can be achieved based on an examination of the past administration.

    “We want the Obama administration to be as accountable as we would have liked for the Bush administration to be,” she said. “But we have to understand the past to know what went wrong.”

    Courtney Holliday is a senior majoring in economics and public policy at Vanderbilt University in Nashville.

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