Despite Administration's Promises, Most Government Transparency Still The Work Of Whistleblowers And Leakers

from the the-government-can-doxx-you,-but-not-itself dept

Meet the new transparency/Same as the old transparency:

The Justice Department has kept classified at least 74 opinions, memos and letters on national security issues, including interrogation, detention and surveillance, according to a report released Tuesday by the Brennan Center for Justice.

There's nothing in the streets/Looks any different to me:

Also still classified are between 25 and 30 significant opinions issued between 2003 and 2013 by the Foreign Intelligence Surveillance Court (FISC), the secretive federal court that interprets the law governing foreign intelligence-gathering inside the United States.

And the slogans are replaced by-the-by:

[A]t the State Department, 807 international agreements signed between 2004 and 2014 have not been published.

The self-proclaimed "most transparent administration" isn't even more transparent than the last administration -- one run by a hawkish member of a politically-powerful family and given a blank check to increase government power by a terrorist attack on American soil.

Less transparent, perhaps, than any other previous administration, including those run by the truly corrupt (Nixon) or those engaged in actual wars against actual entities (rather than against loosely-defined concepts like "drugs" or "terrorism").

These previous administrations managed to be at least as transparent as the current one, even without the "disadvantages" of being presided over by a lawyer specializing in the Constitution and pushed towards openness by multiple leakers exposing multiple secret surveillance programs.

Of course, the Intelligence Community is claiming it's more transparent than ever.

“In the last several years the government has engaged in an unprecedented level of transparency regarding its intelligence collection authorities,” said Brian Hale, a spokesman for the Office of the Director of National Intelligence. Hale said that the transparency includes releasing thousands of pages of documents related to foreign intelligence surveillance on U.S. soil and numerous FISC opinions, including five opinions this year.

When the baseline is zero release, it's pretty easy to surpass these expectations while not being appreciably transparent. The Office of Legal Counsel claims national security prevents the release of these opinions. That may be true in some cases, but secret legal interpretations that have been pried loose suggest some of what's being withheld may just be legal guidance a great deal of the American public would object to. Washington Post's Ellen Nakashima points to the paper's publication of a 2002 OLC opinion that claimed torturing terrorism suspects was not only justified, but violated no international laws forbidding torture. The opinion claimed it was the laws that were bad, not the torture.

[I]nternational laws against torture “may be unconstitutional if applied to interrogations.”

Meanwhile, "national security" is also what's preventing almost half of the agreements made between the US and foreign governments from being published. But the State Department also notes that this is far from the only reason the agency won't allow the American public to know what legal bargains have been struck by their government.

State Department spokesman John Kirby said in a statement that “not every non-publication of an agreement is due to national security purposes.” The law affords multiple exemptions, he noted.

As for the FISC opinions, they're apparently undergoing declassification. But even though the ODNI has made significant strides towards opening up the inner workings of the nation's most secretive court, the releases have been inconsistent and lag far behind the issuing of the court's orders. On top of that, the ODNI has shown less interest in releasing FISC opinions dating back several years, presumably figuring that the new transparency is mostly a "going forward" concern. The ACLU is now suing the government, hoping to force the release of FISC opinions dating back to 2001.

Whatever transparency that now exists in the federal government isn't due to President Obama's pre-election sloganeering. It's been forced on the White House by whistleblowers and leakers. And the response has been far from adequate. When not prosecuting whistleblowers, the Obama administration has moved forward tentatively with plans that are mostly of the "will this do?" variety. His two possible replacements -- a plutocrat who seems to think fascism will make America "great" again and a career politician who found the secretive State Department not quite secretive enough -- offer little hope of expanded transparency in the coming years.

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Filed Under: governments, leaks, secrecy, transparency, whistleblowing