First Amendment topicsAbout the First Amendment
News Story
print this   Print

Despite Obama's pledge, Justice Dept. continues Bush secrecy

By The Associated Press

WASHINGTON — Despite President Obama's promise of more open government, the Justice Department is resisting pressure to release documents the Bush administration kept secret about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists.

In half a dozen lawsuits, Justice lawyers are defending Bush administration decisions to withhold records from the public. They have opposed formal motions or spurned out-of-court offers to merely delay these cases until the new administration rewrites Freedom of Information Act guidelines and decides whether the new rules might allow the public to see more.

In only one case has the Justice Department agreed to suspend a FOIA lawsuit until the disputed documents can be re-evaluated under the yet-to-be-written guidelines. That case involves negotiations on an anti-counterfeiting treaty, not the more controversial, secret anti-terrorism tactics that spawned the other lawsuits as well as Obama's promises of greater openness.

"The signs in the last few days are not entirely encouraging," said Jameel Jaffer, an attorney for the American Civil Liberties Union, which filed several lawsuits seeking the Bush administration's legal justification for warrantless domestic wiretapping and for its treatment of terrorism detainees.

The documents sought in these lawsuits "are in many cases the documents that the public most needs to see," Jaffer said. "It makes no sense to say that these documents are somehow exempt from President Obama's directives."

Groups that advocate for open government, civil liberties and privacy were overjoyed that Obama on his first day in office reversed the FOIA policy imposed by Bush's first attorney general, John Ashcroft. The Bush Justice Department said it would use any legitimate legal argument to defend withholding records from the public. Obama pledged "an unprecedented level of openness in government" and ordered new FOIA guidelines written with a "presumption in favor of disclosure."

But Justice's actions in courts since then have cast doubt on how far the new administration will go.

In a freedom-of-information case seeking access to the FBI's rules for using its Investigative Data Warehouse — a computer database containing 1 billion searchable documents about Americans and foreigners — Justice lawyers told a district court here on Feb. 12, "It is not clear that the new guidelines, once issued, will be retrospective to FOIA requests that the agency already has finished processing."

The government lawyers asked the court to rule instead that the FBI has done enough by reviewing 878 pages, withholding 76 and releasing some portions of 802. The FBI withheld some material on the basis of discretionary FOIA exemptions and ones that require balancing privacy and public interests.

David Sobel, attorney for the Electronic Frontier Foundation, a San Francisco-based group that advocates civil liberties in cyberspace and brought the lawsuit, said those decisions might come out differently under the new guidelines.

The issue isn't retroactivity, Sobel said. "The issue is whether the new administration is going to devote legal resources to fighting old battles now that the president has announced a fundamental change in the government's approach to FOIA."

Other lawsuits in which Justice's civil division has expressed opposition to delays until the administration writes its FOIA guidelines and uses them to review Bush decisions:

  • A case seeking documents about the Automated Targeting System used by Customs officers to screen all travelers leaving or entering the country.
  • A case seeking records of lobbying by telecommunications companies to get legal immunity for cooperating in warrantless domestic wiretapping.
  • A case seeking Justice's legal opinions justifying that wiretapping. One of the plaintiff attorneys, Meredith Fuchs, of the National Security Archive, a private group that publishes formerly classified government documents, said, "I'm somewhat surprised they did not take the opportunity to look at these again, but maybe it's because the administration doesn't have all its top Justice appointees in office yet."
  • Three cases seeking Justice legal opinions about detention and interrogation of terrorism detainees. Civil division attorney Caroline Wolverton wrote the ACLU's Jaffer that Justice would proceed "consistent with the principles" in Obama's FOIA order "and also with due regard for the legitimate confidentiality interests of the executive branch and the national security interests of the United States." Jaffer called that "a non-response response."

So far, Justice has expressed willingness to review Bush decisions in two cases, only one because of FOIA changes.

Only in Sobel's lawsuit for anti-counterfeiting treaty documents has Justice joined a plaintiff to obtain a court delay to give the administration time to write FOIA guidelines and use them to "review its determinations on the documents at issue."

But that case is unusual because Justice is represented by its Office of Information and Privacy, not by the civil division which handles all the other FOIA lawsuits. The information and privacy office provides government-wide guidance on how to obey the FOIA. Attorneys in these FOIA cases worry that the information and privacy office doesn't have the clout of the much larger civil division and may not control administration policy.

The civil division has sought a delay to review one case — involving three 2005 Justice legal memos on the definition of "cruel and unusual" interrogation tactics. But its request didn't mention the new FOIA policy. Instead it said Obama's Jan. 22 executive order on detention and interrogation might alter the government position.

Even if the new administration reviews Bush decisions, there's no guarantee it will reach different conclusions.

Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the state-secrets privilege, a separate legal tool it used to have lawsuits thrown out rather than reveal secrets. The same day, however, civil division attorney Douglas Letter cited that privilege in asking an appeals court to uphold dismissal of a suit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations that tortured them.

Letter said that Obama officials approved his argument.

Copies of disputed White House documents will be left for Obama
Federal judge says incoming administration must receive contested records about the firings of nine U.S. attorneys during Bush's presidency. 01.14.09


ACLU asks Obama to release Bush-era memos

Documents are wish list for civil rights groups, members of Congress seeking more information about legal reasoning that underpinned last administration's secret programs. 01.30.09

Attorney general orders review of state-secrets claims

But even as officials promise thorough assessment, government lawyers continue to invoke privilege in 9th Circuit case involving CIA's rendition program. 02.10.09

Obama administration tries to kill White House e-mail case
Open-government advocate Tom Blanton notes president's call for greater transparency, says Justice Department 'apparently never got the message.' 02.23.09

Shhhhh! Top generals promised to keep budget details quiet
Secretary Robert Gates set rule requiring Joint Chiefs of Staff and top civilian defense officials to sign letter promising not to leak information while budget was being put together. 02.26.09

9th Circuit rejects Obama administration bid to halt wiretapping suit
Government lawyers signal they'll fight to keep information secret, setting up new showdown between courts and White House over national security. 03.02.09

Bush memos: President has broad authority to set aside rights
'First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,' Justice Department official wrote in October 2001. 03.03.09

Attorney general issues new FOIA guidelines
Federal agencies should release data unless foreseeable harm would result; open-government advocates applaud announcement. 03.20.09

Obama administration releases Bush-era memos on CIA interrogation
Memos produced by Justice Department's Office of Legal Counsel were made public to meet court-approved deadline in FOIA lawsuit brought by the ACLU. 04.17.09

Obama keeps some Bush secrets despite openness pledge
Administration has made highly visible announcements when breaking with Bush policy and opening hidden files, but has made quieter rollout of decisions when endorsing secrecy. 04.20.09

Obama discusses secrecy during speech on Guantanamo
President pledges both to safeguard information that's necessary to protect American people and to assure 'accountability and oversight' of government actions. 05.22.09

CIA report on detention, interrogation delayed again
Document had been expected to be made public two weeks ago but was held back over debates about how much of it should be censored. 07.02.09

Attorney general announces new state-secrecy guidelines
Eric Holder says officials will continue previous administration's attempts to block certain lawsuits by asserting privilege, but they will try to curb its use in future. 09.24.09

Destruction of videotapes documented in CIA e-mail
According to records released under FOIA request, President Bush's top lawyer and her CIA counterpart didn't find out waterboarding tapes were destroyed until after the fact. 04.17.10

Too much secrecy is also a threat
By Gene Policinski Keeping some government information under wraps may protect us in some ways, but it also leaves us vulnerable to hidden problems we should know about. 09.09.07

News summary page
View the latest news stories throughout the First Amendment Center Online.

Last system update: Friday, April 23, 2010 | 17:28:35
About this site
About the First Amendment
About the First Amendment Center
How to contribute
First Amendment programs
State of the First Amendment

Religious liberty in public schools
First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links