When Barack Obama ran for president in 2008, his pledges of openness and transparency were not ancillary to his campaign but central to it. He repeatedly denounced the Bush administration as "one of the most secretive administrations in our nation's history," saying that "it is no coincidence" that such a secrecy-obsessed presidency "has favored special interests and pursued policies that could not stand up to the sunlight." He vowed: "as president, I'm going to change that." In a widely heralded 2007 speech on transparency, he actually claimed that this value shaped his life purpose:
"The American people want to trust in our government again -- we just need a government that will trust in us. And making government accountable to the people isn't just a cause of this campaign -- it's been a cause of my life for two decades."
His campaign specifically vowed to protect whistleblowers, hailing them as "the best source of information about waste, fraud, and abuse in government" and saying that "such acts of courage and patriotism ... should be encouraged rather than stifled." Transparency groups were completely mezmerized by these ringing commitments. "We have a president-elect that really gets it," gushed Charles Davis, executive director of the National Freedom of Information Coalition, in late 2008; "the openness community will expect a complete repudiation of the Ashcroft doctrine." Here's just one of countless representative examples of Obama bashing Bush for excessive secrecy -- including in the realm of national security and intelligence -- and vowing a fundamentally different course:
Literally moments after he was inaugurated, the White House declared that "President Obama has committed to making his administration the most open and transparent in history." Obama continues even now to parade around as a historically unprecedented champion of openness. In a 2010 speech, he said "I will not stop fighting to open up government," and then praised himself this way: "we have put in place the toughest transparency rules in history: in history." Right this very minute, on the White House website, Obama is quoted this way: "My Administration is committed to creating an unprecedented level of openness in Government" because "transparency promotes accountability and provides information for citizens about what their Government is doing."
This week is Sunshine Week, created by transparency and civil liberties groups and media outlets as "a national initiative to promote a dialogue about the importance of open government and freedom of information." The White House blog on Wednesday said that "we celebrate Sunshine Week -- an appropriate time to discuss the importance of open government and freedom of information," and quoted the president this way: "Openness will strengthen our democracy, and promote efficiency and effectiveness in Government."
Along with others, I've spent the last four years documenting the extreme, often unprecedented, commitment to secrecy that this president has exhibited, including his vindictive war on whistleblowers, his refusal to disclose even the legal principles underpinning his claimed war powers of assassination, and his unrelenting, Bush-copying invocation of secrecy privileges to prevent courts even from deciding the legality of his conduct (as a 2009 headline on the Obama-friendly TPM site put it: "Expert Consensus: Obama Mimics Bush On State Secrets"). Just this week, the Associated Press conducted a study proving that last year, the Obama administration has rejected more FOIA requests on national security grounds than in any year since Obama became president, and quoted Alexander Abdo, an ACLU staff attorney for its national security project, as follows:
"We've seen a meteoric rise in the number of claims to protect secret law, the government's interpretations of laws or its understanding of its own authority. In some ways, the Obama administration is actually even more aggressive on secrecy than the Bush administration."
Re-read that last sentence in italics. Most of those policies have been covered here at length, and I won't repeat them here. But what is remarkable is that this secrecy has become so oppressive and extreme that even the most faithful Democratic operatives are now angrily exploding with public denunciations.
Let's begin with John Podesta, who was previously the chief of Obama's transition team as well as Chief of Staff in the Clinton White House, and now runs the highly Obama-loyal Center for American Progress. During that 2008 transition, Podesta vowed that the Obama administration would be "the most open and transparent transition in history." Perhaps out of embarrassment that his own vows have been so flagrantly disregarded, Podesta has an amazingly scathing Op-Ed in the Washington Post this morning about Obama's refusal to release even the legal memoranda purporting to vest him with assassination powers. This language is striking indeed given Podesta's central role in the Democratic establishment:
"The Obama administration is wrong to withhold these documents from Congress and the American people. I say this as a former White House chief of staff who understands the instinct to keep sensitive information secret and out of public view ... But protecting technical means, human sources, operational details and intelligence methods cannot be an excuse for creating secret law to guide our institutions. ...
"In refusing to release to Congress the rules and justifications governing a program that has conducted nearly 400 unmanned drone strikes and killed at least three Americans in the past four years, President Obama is ignoring the system of checks and balances that has governed our country from its earliest days. And in keeping this information from the American people, he is undermining the nation's ability to be a leader on the world stage and is acting in opposition to the democratic principles we hold most important. ...
"The law that directs our government's activities should not be kept secret. All branches of the people's government have the right to know the rules and standards under which the other branches act. Congress has the power to oversee the conduct of the executive branch, and lawmakers must be permitted to use it. As Woodrow Wilson wrote: 'The informing function of Congress should be preferred even to its legislative function.' ...
"[W]e cannot lead if the American people are kept in the dark. We cannot lead if the world does not know the principles and laws that guide us, or if others can credibly say that our commitment to a government of the people, by the people and for the people is simply window-dressing, or that we sacrifice our constitutional principles when it is expedient."
Meanwhile, Politico this morning reports on an acrimonious meeting between Obama and various Democratic senators in which they accused Obama of adopting the secrecy obsession of the Bush administration. Apparently, the charge was led by Jay Rockefeller, one of the Senate's most faithful advocates of the National Security State and the rampant secrecy behind which it operates; Obama's secrecy, evidently, is too much even for him:
"Two Obama administration officials, who asked not to be named, confirmed Rockefeller raised the drone oversight issue with the president at the session. ... While Obama defended his handling of the issue, he told his former Senate colleagues he understood their concerns about being left out of the loop on such sensitive decisions, senators said. The president noted that he would have 'probably objected' over the White House's handling of this issue if he were still a senator, they said. But, according to the sources, he noted his viewpoint changed now that he occupies the Oval Office -- not a room in a Senate office building. ...
"During a Senate Select Committee on Intelligence hearing Tuesday just before the meeting with Obama, the senior senator from West Virginia railed against the administration's secrecy and publicly charged that it amounted to a return to the Bush approach. ... 'It's a terrible situation,' a clearly irritated Rockefeller said during the annual hearing focusing on global threats to the US. ... Rockefeller also charged that after Brennan was confirmed, the administration clammed up again and 'went directly back to the way they were from 2001-2 to 2007.' As for the legal memos shared after two years of requests, Rockefeller said there was 'nothing in them which is a threat to anybody.'"
To justify his conduct, Obama "tried to assure his former colleagues that his administration is more open to oversight than that of President George W. Bush", saying: "This is not Dick Cheney we're talking about here." This excuse Obama used -- I used to object to these things when I was a Senator but see it differently now that I'm president -- is one that is frequently heard from his followers, but more important, is what Bush supporters always said would happen once a Democrat became president: that, with the secret information you get in the Oval Office and the need to Keep Us Safe, a Democratic president would realize that Bush and Cheney were right all along about many of the policies which Democrats spent eight years so harshly denouncing. Given that Obama himself is now expressly saying this ("he noted his viewpoint changed now that he occupies the Oval Office"), doesn't he and his party -- as I've asked many times before -- owe a heartfelt and sincere public apology to Bush and Cheney for bashing them so harshly for policies which Obama now not only adopts but has come to explicitly defend?
Then we come to this morning's New York Times Op-Ed by the always-great Harvard law professor Yochai Benkler and Floyd Abrams, the self-proclaimed First Amendment champion who represented the New York Times in fighting off the Nixon administration's attempts to prevent publication of the Pentagon Papers leaked by Daniel Ellsberg. While Benkler has been a vocal defender of WikiLeaks and Bradley Manning, Abrams has been a critic of both. Nonetheless, those two united to warn the nation of the grave dangers posed to whistleblowing and a free press from the wildly excessive prosecution of Manning:
"If successful, the prosecution will establish a chilling precedent: national security leaks may subject the leakers to a capital prosecution or at least life imprisonment. Anyone who holds freedom of the press dear should shudder at the threat that the prosecution's theory presents to journalists, their sources and the public that relies on them.
"You don't have to think that WikiLeaks is the future of media, or Private Manning a paragon of heroic whistle-blowing, to understand the threat. ... [W]hat could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?
"So yes, we continue to disagree about what to make of Private Manning and WikiLeaks. But we agree that WikiLeaks is part of what the Fourth Estate is becoming, that the leaks included important disclosures and that their publication is protected by the First Amendment no less than the publication of the Pentagon Papers was.
"Private Manning's guilty plea gives the prosecution an opportunity to rethink its strategy. The extreme charges remaining in this case create a severe threat to future whistle-blowers, even when their revelations are crystal-clear instances of whistle-blowing. We cannot allow our concerns about terrorism to turn us into a country where communicating with the press can be prosecuted as a capital offense."
So here we have not Republicans but the most loyal establishment Democrats denouncing Obama's secrecy obsession in the harshest of terms. "President Obama is ignoring the system of checks and balances that has governed our country from its earliest days." He is "acting in opposition to the democratic principles we hold most important." "The administration clammed up again and went directly back to the way they were from 2001-2 to 2007." "What could be more destructive to an informed citizenry than the threat of the death penalty or life imprisonment without parole for whistle-blowers?"
This hardly means that Democrats are now ready to pose meaningful challenges to Obama's radical policies: to release the OLC memos would be simply to disclose the White House's claimed justification for the powers it has seized, and would not mean there would be meaningful opposition to those powers. Still, secrecy is the linchpin of abuse of power and transparency is a necessary (though not sufficient) antidote; as Thomas Jefferson wrote in an 1804 letter to John Tyler: "Our first object should therefore be, to leave open to him all the avenues of truth. The most effectual hitherto found, is freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions."
It is telling indeed that even Democratic loyalists are losing their patience with Obama's secrecy obsession, as it reveals just how extreme it is. And all of this from a president who not only centrally vowed in his campaign to usher in a new era of transparency, but who still praises himself for having done so.Rule of Law
Last week at Yale Law School, I spoke about America's two-tiered justice system and the perversion of the rule of law, all of which relates to the issues raised here. Those interested can watch the 40-minute speech and the Q-and-A that follows here: