OPEN GOVERNMENT — Enthusiasm and relief tempered by dry-eyed realism marked the reactions of some experienced observers reacting to President Obama's 'Day One" announcement of pro-transparency policies for the executive branch.
Steven Aftergood of the FAS Project on Government Secrecy noted that much of the problem lies outside the Freedom of Informatin Act.
Inevitably, several caveats are in order. A "presumption of disclosure" really only applies to records that are potentially subject to discretionary release, which is a finite subset of secret government information. Vast realms of information are sequestered behind classification barriers or statutory protections that remain unaffected by the new policy statements. "In the face of doubt, openness prevails," the President said. But throughout the government secrecy system, there is not a lot of doubt or soul-searching about the application of secrecy.
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Unfortunately President Obama's new directives do not yet encompass the needed overhaul of the national security classification system. That may have to wait another day or two.
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Unfortunately President Obama's new directives do not yet encompass the needed overhaul of the national security classification system. That may have to wait another day or two.
Investigative journalist Robert Parry welcomed the reversal of the Bush executive order on the Presidential Papers.
When authoritarian forces seize control of a government, they typically move first against the publics access to information, under the theory that a confused populace can be more easily manipulated. They take aim at the radio stations, TV and newspapers.
In the case of George W. Bush in 2001, he also took aim at historical records, giving himself and his family indefinite control over documents covering the 12 years of his fathers terms as President and Vice President.
It was, therefore, significant that one of Barack Obamas first acts as President was to revoke the Bush Familys power over that history and to replace it with an easier set of regulations for accessing the records.
In the case of George W. Bush in 2001, he also took aim at historical records, giving himself and his family indefinite control over documents covering the 12 years of his fathers terms as President and Vice President.
It was, therefore, significant that one of Barack Obamas first acts as President was to revoke the Bush Familys power over that history and to replace it with an easier set of regulations for accessing the records.
Clint Hendler, blogging for the Columbia Journalism Review, noted the significance of using an executive order to declare a disclosure bias in Freedom of Information Act policy.
Both the Clinton and Bush executive branch FOIA implementation instructions were issued by their attorneys general via memos, not by a Presidential executive order or directive. Alas, pending Eric Holders confirmation, America is running without an appointed attorney general, and that absence would be enough to explain why Obama made the FOIA change via an executive order.
But its worth remembering that an executive order or directive is quite a different thing, both in force of law and in symbolic importance, than a memo from a cabinet official. An executive order is much stronger medicine. It is a directive from the president to government to do the following unless youre otherwise prohibited by law, says David Vladeck, a law professor at Georgetown who has litigated many FOIA cases, and who says he has discussed the administrations FOIA plans with members of the transition.
The Ashcroft and Reno memos had great impact, but they merely outlined the extent to which the Justice Department would go in court to defend other branches FOIA decisions. And those two yo-yoing memos show how easy it is to revoke guidance via memo.
But its worth remembering that an executive order or directive is quite a different thing, both in force of law and in symbolic importance, than a memo from a cabinet official. An executive order is much stronger medicine. It is a directive from the president to government to do the following unless youre otherwise prohibited by law, says David Vladeck, a law professor at Georgetown who has litigated many FOIA cases, and who says he has discussed the administrations FOIA plans with members of the transition.
The Ashcroft and Reno memos had great impact, but they merely outlined the extent to which the Justice Department would go in court to defend other branches FOIA decisions. And those two yo-yoing memos show how easy it is to revoke guidance via memo.
