Obama Authorizing Agencies to Lie

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Obama's secrets

The Obama administration should rethink its outrageous proposal that would allow the government to lie to citizens about whether documents exist.

October 31, 2011

One of the most disappointing attributes of the Obama administration has been its proclivity for secrecy. The president who committed himself to "an unprecedented level of openness in government" has followed the example of his predecessor by invoking the "state secrets" privilege to derail litigation about government misdeeds in the war on terror. He has refused to release the administration's secret interpretation of the Patriot Act, which two senators have described as alarming. He has blocked the dissemination of photographs documenting the abuse of prisoners by U.S. service members. And now his Justice Department has proposed to allow government agencies to lie about the existence of documents being sought under the Freedom of Information Act, or FOIA.

At present, if the government doesn't want to admit the existence of a document it believes to be exempt from FOIA, it may advise the person making the request that it can neither confirm nor deny the document's existence. Under the proposed regulation, an agency that withholds a document "will respond to the request as if the excluded records did not exist."

This policy is outrageous. It provides a license for the government to lie to its own people and makes a mockery of FOIA. It also would mislead citizens who might file an appeal if they knew there was a possibility that the document they sought was in the possession of a government agency. Such an appeal would allow a court to determine whether the requested document was covered by an exemption in FOIA.

Even without the new rule, federal law enforcement agents have denied the existence of important documents. In a lawsuit involving surveillance of Muslim organizations in Southern California, the FBI was reprimanded by a federal judge. "The Government cannot, under any circumstance, affirmatively mislead the court," wrote Judge Cormac J. Carney. The FBI justified its misrepresentation by citing national security.

An appeal to national security underlies many of the Obama administration's decisions to withhold information of public interest. But, as with past presidents, a stronger motive seems to be to protect the government from embarrassment. Take the case of a lawsuit against an aircraft services company accused of helping the George W. Bush administration transport suspected terrorists to other countries for interrogation. In invoking the state secrets privilege, the administration told the court that proceeding with the case would be "play[ing] with fire." Yet the details of the rendition program had long been public.

FOIA doesn't provide a blanket right to public access to government documents. It's reasonable to have exceptions for certain classified national security or foreign policy documents if their release would damage American interests. The government should be free to withhold those documents, subject to review by the courts, but it would be unacceptable — and deeply undemocratic — to pretend they don't exist. The Justice Department should discard the rule and start over. And Obama should reread his pronouncements about transparent government.

Copyright © 2011, Los Angeles Times


ACLU: Obama “Authorizing Agencies to Lie”
http://www.commentarymagazine.com/2011/10/31/foia-aclu-obama/

While the Obama administration’s hostility to transparency is well known, its latest scheme would break new ground in government secrecy. The administration’s proposed changes to the Freedom of Information Act guidelines would allow the Department of Justice to deny the existence of documents and prevent judicial oversight.

The ACLU says the rule changes would “dramatically undermine government integrity,” and the Sunlight Foundation, in a post that lays out fifteen ways the new rules would undermine transparency, notes that while most coverage has “focused on the DOJ’s desire to lie about the existence of records… DOJ’s efforts to undermine FOIA go well beyond dishonest requests.” Today’s Washington Examiner editorial explains what is so harmful about the changes:

First, by not citing a specific exemption allowed under the FOIA as grounds for denying a request, the proposal would cut off a requestor from appealing to the courts. By thus creating an area of federal activity that is completely exempt from judicial review, the proposal undercuts due process and other constitutional protections. Second, by creating a justification for government lying to FOIA requestors in one area, a legal precedent is created that sooner or later will be asserted by the government in other areas as well.


The Department of Justice can already deny the release of documents on national security grounds by issuing what is known as a Glomar denial, which doesn’t officially deny the existence of the records and is open to appeal, thus preserving judicial oversight. The Obama administration wants to put an end to transparency and accountability. President Obama has taken to touting his administration’s record on transparency, but it has been clear from the beginning that the president intends to operate as much in the dark as possible. As the Wall Street Journal reported in May:

The administration promised in 2009 to release visitor logs to the White House. According to a report by the Center for Public Integrity, to date only 1% of 500,000 meetings from the president’s first eight months have been released, and thousands of known visitors (including lobbyists) are missing from the lists.

Mr. Sterns also cited news stories that explain how administration officials purposely met with lobbyists at a nearby coffee shop to avoid official records of meetings. The C-Span recordings [of the health care bill negotiations] never happened, of course, and the White House has also hid much of its work behind its “czars.”

The Sunlight Foundation, clearly fed up with three years of empty promises, observes, “Presidential rhetoric doesn’t get FOIA requests filled.” And the Obama administration wants to keep it that way.