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Sunshine Week 2010: a mixed bag

Last week was Sunshine Week, and to mark the occasion, the National Security Archive released a report titled "Sunshine and Shadows: The Clear Obama Message for Freedom of Information Meets Mixed Results." The report, based on an audit the Archive conducted of the federal government, found that only four of 28 responding agencies show FOIA releases up and denials down, compared to 2008.

Probably the most surprising part of the audit related to FOIA requests the Archive filed in September 2009, requesting information about the agencies' responses to the FOIA memoranda Pres. Obama and Atty. Gen. Holder issued in the spring of 2009:

Some agencies (13 out of 90) implemented concrete changes in practice as a result of the memos; some (14 out of 90) have made changes in staff training; and still others (11 out of 90) have merely circulated and discussed the memos. The remaining agencies (52) either told the Archive that they have no records that demonstrate how they implemented the Obama and Holder Memos or did not respond at all to the FOIA request.

While I didn't expect an overnight sea change in FOIA policy with Obama's election, it is hard to believe that such a small percentage of the agencies could provide any evidence that they took steps to comply with the memos, or even received them. If next year's audit does not find substantial improvement, it will be a serious rebuke of Obama's transparency platform.

In other (more promising) Sunshine Week news, Rep. Steve Israel (D-NY) is sponsoring a bill called the Public Online Information Act (POIA), which would set the bar for "public" information at "online in user-friendly formats." The Sunshine Foundation's website has more information about the bill, including a one-minute-long video explaining how it would improve transparency. Excerpt from the Sunshine Foundation's summary:

In the age of the Internet, government is transparent only when public information is available online. The Sunlight Foundation supports the Public Online Information Act (POIA), legislation that embraces a new formula for transparency: public equals online. No longer will antiquated government disclosure practices bury public information in out-of-the-way offices and in outmoded formats.

POIA requires Executive Branch agencies to publish all publicly available information on the Internet in a timely fashion and in user-friendly formats. It also creates an advisory committee to help develop government-wide Internet publication policies. Freeing government information from its paper silos provides the private sector with raw material to develop new products and services and gives the public what they need to participate in government as active and informed citizens. Establishing an advisory committee that brings all three branches of government and the private sector together to develop government-wide information best practices will improve how the government serves the American people.

Pillar on the relevance of "safe havens"

Paul Pillar's op-ed in the Washington Post last week was one of the more interesting pieces I've read about Obama's Afghanistan dilemma. Pillar questions one of the major underlying rationales for maintaining a military presence in the country: if the US leaves, it will return to being a terrorist "safe haven," which will inevitably lead to more 9/11-style attacks.

Pillar isn't attacking the argument that Afghanistan could return to being a safe haven if the US leaves - instead, he's questioning how important physical safe havens are to terrorism, considering that, as he puts it: "The preparations most important to the Sept. 11, 2001, attacks took place not in training camps in Afghanistan but, rather, in apartments in Germany, hotel rooms in Spain and flight schools in the United States." Steve Clemons has a good recap and discussion of the op-ed at The Washington Note.

Don't Ask Don't Tell Madness

I've always thought Don't Ask Don't Tell was silly, but hearing the personal stories on Maddow, and from a friend whose dream is to be a JAG officer but knows she can't, has moved me into the category of being really pissed off about it. Victor Fehrenbach's story is one of the craziest, especially given the amount of expensive training a pilot receives. We're in TWO WARS right now, and this guy's getting fired?!

I had no idea "Don't Ask, Don't Tell" included mandatory investigations once anyone has accused a servicemember of being gay, and almost no one I've talked to about this case knew it was that harsh, either. I guess it's an example of how a policy's name can play a huge role in shaping public opinion about it. I'm confident that if the public understood how draconian DADT really is, legislation ending the practice would have 70-80% of the country's support. We can't afford to have a law this stupid any longer.

"AF Boots Decorated Pilot For Being Gay" [Military.com]

Anonymous "Student in Tehran" has op-ed in tomorrow's NYT

From The Washington Note:

"For about a day, I have been quite worried about the 'Anonymous Student in Tehran' who was sending important dispatches to us of what he was seeing convulsively unfold in Iran. He had been quiet all day.

But we've just had a set of exchanges, and he's OK. I just learned that he will have an op-ed in tomorrow's New York Times under the pseudonym 'Shane M.'

It's exciting to see bloggers/twitterers living under repressive regimes demonstrating the ability of blogging/social media to make the world a more democratic place. And it's also good to see the Times embracing one of these voices, instead of keeping them separate from the "official" news.

UPDATED 6/19/2009:Our anonymous student's op-ed, A Different Iranian Revolution, is up on the NYT website.

The "long war" against FOIA via congressional exemptions

Not long after announcing that his administration would release more torture photos sought in a Freedom of Information Act lawsuit filed by ACLU, President Obama suddenly reversed his decision last month, and it appears that the flip-flop can be attributed to the Iraqi Prime Minister's warning that "Baghdad will burn" if they are released.

Senators Lindsey Graham and Joe Lieberman have been trying to pass an amendment which would exempt the controversial remaining photos of detainees from release under the Freedom of Information Act, with Graham saying that "This is the first shot in a long war . . . There are other lawsuits pending out there that want to compromise our national security in the name of freedom of information and transparency." (I hope my FOIA suit against the State Department, which is on hold until late July, doesn't fit into this category! I'm pretty sure it isn't one of the ones he is referring to.)

I understand Graham's argument that the pictures may provoke additional anger in Afghanistan and/or Iraq - after all, torture is inhumane, which is why it is banned under the Geneva Conventions, and why a majority of Americans were outraged when the first Abu Ghraib pictures surfaced several years ago. That said, it seems like most Iraqis would know about Abu Ghraib by now, and given what the country has gone through since 2003, it seems like a bit of a stretch to claim that the release of more photographs of detainee abuse would have such a dramatic impact, unless the photographs are particularly extreme or vile (and it should be noted that the Daily Telegraph report that the photos in question include images of rape has been debunked).

And if Congress starts exempting specific documents from the Freedom of Information Act - even in cases like this one, where two federal courts have ruled that the documents do not meet any of FOIA's statutory exemptions - it will set a dangerous precedent which would seriously undermine government transparency. Moreover, when Graham says that this is the "first shot in a long war" against FOIA and transparency in the national security context, it is clear that he envisions these congressional exemptions to FOIA being used on a regular basis, rather than being reserved for once-in-a-decade type situations. In other words, Lindsey Graham's own statements provide a strong "slippery slope" argument against his proposal.

The other major problem with Graham and Lieberman's proposal (and with the Obama administration's opposition to the release of the pictures) is the basic hypocrisy of demonizing the release of photographs depicting torture, yet simultaneously refusing to investigate the people behind the acts of torture themselves. If the mere release of more photographs depicting torture would be a "death sentence" to Americans serving overseas, as Graham claims, doesn't it follow that ordering American troops to torture detainees, and ordering them to photograph that torture for blackmail purposes (see this post) have put our troops at considerable risk? And if the neocons' decision to order our troops to torture detainees has put those troops at risk, doesn't it follow that we should have an investigation of some sort?

For more information on this issue, Glenn Greenwald has an exhaustive recap of the controversy, and makes a strong case against congressional exemptions to FOIA.

NC bans smoking in restaurants and bars

The NC legislature passed a bill yesterday which will ban smoking in restaurants and bars. It's a huge step forward, and it's pretty remarkable when you take a step back and think about it, given tobacco's role in the history of the state.

Pictured at the right: a 1949 Lucky Strike ad featuring a tobacco warehouse operator in my dad's hometown, Oxford, NC (which is between Durham and the Virginia border, in the heart of brightleaf tobacco country).

Iraq and the state of the newspaper industry

Recently, veteran Washington Post reporter Walter Pincus penned an essay for the Columbia Journalism Review on what led to the current state of the newspaper industry. Instead of just blaming the usual suspects - the loss of classified advertising to the internet, and the increasingly competitive media landscape - Pincus focuses on the "move away from expertise" in reporting and "the growth of public relations in government."

Most newspapers and the broadcast media have cut the number of reporters on beats. Meanwhile, young reporters are increasingly shifted from beat to beat, never having enough time to master complex subjects such as health care, public education, or environmental policies. As a result, more of their stories are based not on reportorial expertise, but on pronouncements by government sources or their critics.

Reporters are shifted around in part because of decreasing resources, and in part because within the profession, reporters are encouraged to become editors, editors to become publishers, and publishers of small papers pushed to manage bigger ones. This results in less expertise at the most important level—where reporters gather information.

Meanwhile, we have turned into a public-relations society. Much of the news Americans get each day was created to serve just that purpose—to be the news of the day. Many of our headlines come from events created by public relations—press conferences, speeches, press releases, canned reports, and, worst of all, snappy comments by “spokesmen” or “experts.” To serve as a counterpoint, we need reporters with expertise.

Consider the worst of recent examples. I believe the Bush administration sold the March 2003 invasion of Iraq to the American people beginning with a public-relations campaign that started in August 2002. Vice President Dick Cheney kicked it off with a series of speeches on the growing threat from Saddam Hussein, and it continued almost daily, with key members of the administration giving speeches, statements, or press conferences. The result was that the threat from Saddam Hussein—his alleged nuclear weapons, the idea that he would give chemical or biological weapons to terrorists—dominated news coverage right up to the time the first missiles hit Baghdad on March 19, 2003. [Columbia Journalism Review]

I'm glad to hear a top reporter put some of the blame for the current state of the industry at the hands of publications themselves. Personally, the media's failure to provide quality coverage during the lead-up to the Iraq War was what inspired me to start this blog (not that I have any delusions that it could fill the shoes of a major newspaper). When I hear about a newspaper closing its doors, the first thing I do is worry about how it will impact the news landscape, and feel sorry for the reporters who have lost their jobs. But then a part of me thinks back to 2003 and says: "Wait, I'm supposed to be sad that another company that was involved with that is going under?"

I know it's a little irrational to hold the entire industry responsible for the selling of a war. But the American newspapers' Iraq debacle came at the exact wrong time: the moment that internet news sites and blogs were first gaining widespread legitimacy. The mainstream media's woeful coverage of the lead-up to Iraq probably did more to level the playing field for alternative media outlets than any other single factor.

"Newspaper Narcissism" [Columbia Journalism Review]

The very complicated issue of political independence at the DOJ

After the release of more DOJ torture memos last week, President Obama said that he would not prosecute the CIA interrogators who carried out the Bush administration's orders. Keith Olbermann and other commentators interpreted Obama's statement broadly, taking it to mean that there would be no prosecutions related to the torture issue whatsoever. My initial take on it was that this interpretation of the President's comments was a little too broad, although I understood the point Olbermann et. al. were making - that prosecutions of the federal employees who actually committed the torture would probably be the most straightforward way to bring their superiors (who created/approved the interrogation policies) into court.

Today, Obama provided a clarification on this issue:

"For those who carried out some of these operations within the four corners of legal opinions or guidance that had been provided from the White House, I do not think it's appropriate for them to be prosecuted.

With respect to those who formulated those legal decisions, I would say that that is going to be more of a decision for the Attorney General within the parameters of various laws, and I don't want to prejudge that. I think that there are a host of very complicated issues involved there." [Marc Ambinder]

So he wasn't saying that prosecutions are off the table. That said, there are problems with the AG being "the decider" (to use a Bushism). One of the main reasons Obama has been hesitant about investigations or prosecutions of Bush officials is that he wants to avoid the appearance of partisanship. And while Attorney General Holder is serious about restoring the DOJ's political independence, he remains one of Obama's most visible appointments, and one of the most visible examples of the "Change" Obama promised. If Holder calls for prosecutions of members of the administration whose record Obama won by running against, it could create the (wholly unfair) perception that he is Obama's Alberto Gonzales.

What's especially frustrating about the situation is that the Bush DOJ's lack of political independence probably makes it even harder for the Obama DOJ to undertake controversial prosecutions without appearing unduly politicized. After eight years of the DOJ being run by yes men, some Americans might just assume that the attorney general is supposed to base prosecutorial decisions on the President's political agenda - and would not draw any distinction between Holder and Obama.

That's at least one of the "very complicated issues" Obama faces when it comes to torture prosecutions. Another issue may be the fear that prosecuting members of a previous administration over their policies could set a dangerous precedent, inviting payback in the form of prosecutions by a subsequent Republican administration. It isn't hard to imagine that line of argument: "they weren't satisfied with beating us in the 2008 election, they had to rub it in by prosecuting us over the policies they didn't agree with. If they can, why can't we?" I'm not suggesting that the Obama administration will do anything as controversial or illegal as the Bush administration's torture program, but I have a feeling that wouldn't stop the GOP from trying (see Clinton impeachment).

Increasingly, some kind of congressional investigation or 9/11 Commission-style blue-ribbon panel investigation looks like a better option for the Obama administration, and the President sounded more open to the idea today than he has before, saying that any congressional investigation would need to be carried out in a "bipartisan fashion." [Bloomberg] The only problem with that is that the GOP leadership hasn't shown much interest in throwing the Bush administration under the bus, aside from saying that Bush strayed from the party's fiscal conservatism.

Which surprises me, to be honest. As it stands now, everyone my age (31) and younger will permanently associate the GOP with Bush, Cheney, Rumsfeld, et. al. And the GOP's core strategy - repeating the same old platitudes about Reagan - is not going to make the association between their party and the Bush administration go away. Reagan was out of office by the time I was twelve, and moreover, most of his big ideas have been proven wrong in the twenty years since then.

If the Republican leadership has any interest in competing nationally again, the smartest thing they could do right now would be to take an active role in a bipartisan investigation of pre-Iraq intelligence and torture - making it clear that those were the Bush administration's policies, not theirs, and that we are wrong for lumping them in with people who would lie about something as serious as the rationales for starting a war our friends and classmates would fight, or would put the United States on the "countries that torture" list alongside serial human rights violators like China and Syria. Until the GOP throws the Bush administration under the bus, Bush will still be in the driver's seat, with Cheney riding shotgun.