March 09, 2012
Adam Zyglis, The Buffalo News
Today begins another Sunshine Week, when we pause to assess where on the transparency spectrum we find ourselves and what, if any, progress our government has made during the past year. Sadly, the picture is far from rosy. Just days ago, in a brief filed in the U.S. Court of Appeals for the D.C. Circuit, the Department of Justice trotted out arguments first made by the Bush administration on why the Secret Service can not be compelled under the Freedom of Information Act to release White House visitor logs. And as happened with the Bush era torture memos, Attorney General Eric Holder is refusing to release any part of his department’s memos justifying the killing of certain U.S. citizens at the unreviewable discretion of the president. The administration’s claims of greater transparency ring particularly hollow against a backdrop of failed promises that have robbed the word “transparency” of much of its vitality.
Despite the administration’s rhetoric, we decidedly have not entered a new and improved era of disclosure under the Freedom of Information Act. A recent study by the Transactional Records Access Clearinghouse’s FOIA Project revealed that even though Attorney General Holder imposed more rigorous standards for the Department of Justice to defend agency withholdings under the FOIA, no evidence exists these standards have ever been implemented. Instead, evidence abounds that at DOJ, it is business as usual.
CREW’s experience supports this. This administration began its so-called transparency agenda defending the withholding of FBI notes of its interview with Dick Cheney as part of its investigation into the leak of Valerie Plame Wilson’s covert identity. Even the district court judge in the case expressed surprise that the Obama Department of Justice was clinging to the position the records must be protected as law enforcement records, even though the investigation was long over and no one beyond Scooter Libby faced any chance of prosecution. Then came the White House visitor logs litigation, a public relations disaster for the Obama White House then in the midst of health care negotiations. While CREW reached a settlement with the White House that allowed more general public access to visitor records on an ongoing basis, the White House and DOJ maintained the position that the records are not subject to the FOIA.
More recently, DOJ has fought tooth and nail to resist even identifying any records responsive to CREW’s FOIA requests concerning members of Congress investigated but not prosecuted by DOJ. Two separate district court judges have rejected DOJ’s strained arguments that the privacy interests of these very public figures – Rep. Don Young (R-AK) and Rep. Jerry Lewis (R-CA) – are so strong as to justify categorically withholding all responsive documents. As one judge noted, “especially in the wake of [DOJ’s] failure to successfully prosecute Senator Ted Stevens . . . the public has a clear interest in documents concerning DOJ’s handling of the Lewis investigation.”
If the president is still pushing the notion of government transparency, his justice department hasn’t gotten the message. We must continue to fight for access to records that will explain why our government has made some of its most controversial decisions and why agency components like DOJ’s Criminal Division appear to have failed so miserably in exercising prosecutorial discretion. Forty years ago a break-in at the Watergate complex begat sunshine laws that provide access to what our government is doing and why. Imperfect as they may be, these laws grant us a legal right that no administration can take away from us. This Sunshine Week, we must keep in mind it is up to all of us to insist on government transparency.
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