{"id":25148,"date":"2011-07-29T12:36:49","date_gmt":"2011-07-29T11:36:49","guid":{"rendered":"http:\/\/www.indexoncensorship.org\/?p=25148"},"modified":"2016-10-06T11:13:03","modified_gmt":"2016-10-06T10:13:03","slug":"assessing-obamas-record-on-transparency","status":"publish","type":"post","link":"https:\/\/www.indexoncensorship.org\/newsite02may\/?p=25148","title":{"rendered":"Assessing Obama’s record on transparency"},"content":{"rendered":"

Emily Badger speaks to Geoffrey R Stone on what could be the US’s single most important civil liberties issue in the age of the War on Terror<\/strong>
\n\"Geoffrey<\/p>\n

First Amendment scholar\u00a0Geoffrey R Stone<\/a> wrote for Index back in 2008<\/a> that the American public\u2019s right to know had been one of the\u00a0greatest casualties of the Bush Administration<\/a>. A previous colleague of Barack Obama at the University of Chicago Law School, Stone had high hopes that the new president would reverse many of his predecessor\u2019s damaging policies. That has not exactly been the case. This week, Stone sat down with Index to assess Obama\u2019s record on transparency, which, he concludes, may be the single most important — and fragile — civil liberties issue in the age of the War on Terror.<\/em><\/p>\n

Index:<\/strong>\u00a0When you wrote for Index at the end of the Bush Administration, the state of the public right\u2019s to know had largely been damaged by government secrecy. At the time, what were you hoping would happen under the Obama Administration?<\/em><\/p>\n

Stone:<\/strong>\u00a0I was hopeful that when President Obama took office he would have a much more open sense of the importance of the actions of government being made transparent to the American people. Certainly, that was a theme in his campaign. So I think it was reasonable to expect major change in some of the Bush-era policies.<\/p>\n

Index:<\/strong>\u00a0In some cases, that has happened, particularly around changes Obama has made to\u00a0Freedom of Information policy<\/a>\u00a0and\u00a0classification standards<\/a>.<\/em><\/p>\n

Stone:<\/strong>\u00a0Right. Most notably, the President has changed the standard for the classification of information. Under President George W Bush, the prior standard was expanded to allow greater classification, so that any material that, if disclosed might have harm to the national security, was to be classified. Under the Clinton Administration, and now under the Obama Administration, the standard was changed to say that classification was permissible only if the potential harm to the national security outweighs the value of the disclosure of the information to the public, which is a more appropriate way to strike the balance between the need of the public to know, and the need of the government to keep things confidential. So, in some respects, the Obama Administration has made significant progress. But in lots of other areas, I think it\u2019s been disappointing.<\/p>\n

Index:<\/strong>\u00a0Can you walk through those areas?<\/em><\/p>\n

Stone:<\/strong>\u00a0One of those areas has to do with\u00a0journalist-source privilege<\/a>. Forty-nine states and the District of Columbia provide a privilege to journalists not to disclose the identities of confidential informants, either at all or unless the government could show a very substantial justification and need for the identities. The federal government does not have such a privilege. Obama was a supporter of the\u00a0bills in Congress to create a federal privilege<\/a>,\u00a0but since taking office, he\u2019s been much more skeptical about it and has essentially suggested it should not be adopted if the information would be potentially harmful to national security. As a consequence, nothing has happened, no legislation has been enacted, and that\u2019s quite disappointing.<\/p>\n

Another area where he\u2019s been less transparent than people had hoped had to do with the issue of whistleblowers. Federal law does not give any clear protection to whistleblowers in the national security context, and yet there are certainly circumstances \u2013 for example, where a whistleblower reveals information about illegal government policies, or reveals information about highly wasteful or incompetent government action, or simply reveals information that\u2019s of grave importance to the public — where there should be a clear privilege for whistleblowers to expose that information without risk of prosecution. Once again, the legislation simply has been stalled in Congress. The President has not made any effort to push it along, and indeed has prosecuted several people in circumstances that are problematic.<\/p>\n

The third area where he\u2019s been disappointing has been in State Secrets. The\u00a0State Secrets doctrine<\/a>\u00a0has been around almost 60 years, and it means that the federal government can refuse to reveal information in litigation if the information may be harmful to national security, and indeed can simply close down the litigation if it feels it can\u2019t adequately defend itself without revealing the information. If, for example, someone sues the government claiming that the National Security Agency\u2019s surveillance program initiated under President Bush violates federal law, what the Bush Administration did was to essentially assert that that litigation could not go forward because the only way that we could defend the legality of our policy was by revealing information to the court that would, if revealed, harm national security. And the Bush Administration took the position that judges should simply defer to the assertion by the government that there would be this damage. At the very least, it was expected that the Obama Administration would take a much more reserved approach with respect to the use of the State Secrets doctrine and would approve legislation that would limit the application of the doctrine to situations where the judge himself is in a position to evaluate the degree of potential danger to the national security. But, nothing has happened on that, again. The Administration has not moved forward on it and has indeed continued to assert the State Secrets doctrine in situations not dissimilar to that of the Bush Administration.<\/p>\n

Index:<\/strong>\u00a0You\u2019ve mentioned that there are several areas in which Obama\u2019s actions in the White House have been very different from what he said he believed when he was a senator. Do you think that\u2019s because all of these issues look different when you\u2019re looking at them from the White House, or because as president he\u2019s been influenced by people with different views within the security world?<\/em><\/p>\n

Stone:<\/strong>\u00a0There are a lot of factors that enter into play. One of them is the sense that, \u201cwell now my guys are in charge, so we\u2019re going to behave, so we trust ourselves to do well, and the public should trust us to do well, even if you couldn\u2019t trust George Bush to exercise good judgment on these matters.\u201d So one part of this is that when you\u2019re in a position of authority, you believe your motives are good, and therefore there\u2019s no need for a check on your behaviour. That\u2019s a natural phenomenon, it happens all the time, and I think it plays a role.<\/p>\n

Part of it may be that you have a better appreciation of the complexities of the situation than you did before you were inside, and that with that greater appreciation, you in fact wisely changed your position, because you recognised it\u2019s not as easy to do the things you thought should be done when you were outside the Administration.<\/p>\n

A third factor is politics. Some of these [positions] would appear to be politically weak on national defence, and even though you believed it was the right thing to do, you might decide that to actually do them when you\u2019re the president would cost you support. Your enemies would characterise you as being ineffectual when it comes to protecting the nation from external enemies. And therefore, you don\u2019t want to expose yourself to that kind of attack, even though you still believe the right thing to do on the merits of the issue, as opposed to larger issue of electability, would be to change the law.<\/p>\n

Fourth, there are relationships with other people in your Administration that you have to be cognisant of. You don\u2019t want to alienate unnecessarily \u2013 even though you\u2019re the boss \u2013 people in your administration, like members of the military or Defence Department by doing what you believe is the right thing and they believe is the wrong thing. You may believe you\u2019re right but decide \u201cI don\u2019t really want to alienate all these people by overriding what they think is their better judgement on these matters.\u201d<\/p>\n

There are lots of reasons why these changes [in position] may take place, and some of them are better than others. But I suspect in varying degrees, all of them play a role.<\/p>\n

Index:<\/strong>\u00a0Particularly around the\u00a0Thomas Drake case<\/a>,\u00a0there has been a lot made out of the fact that Obama has been a more aggressive pursuer of whistleblowers than any of his predecessors. Is it fair to characterise him that way, or is that more of a statistical anomaly given that he inherited many of these cases from the Bush Administration?<\/em><\/p>\n

Stone:<\/strong>\u00a0I think the latter. My guess is that Obama is not more aggressive; it\u2019s just that he has more cases that are holdovers from situations that arose in the prior Administration. I have no reason to believe that he\u2019s actually being more aggressive than the Bush Administration would have been in the same circumstances.<\/p>\n

Index:<\/strong>\u00a0Do you think that since the administration is actively pursuing the handful of whistleblower cases it has to essentially create a chilling effect on other would-be whistleblowers?<\/em><\/p>\n

Stone:<\/strong>\u00a0I think that\u2019s exactly right. There\u2019s no real need to punish these people \u2013– they\u2019re not going to be in the position again to be whistleblowers. If nothing else, they\u2019ve been fired, and never again given a security clearance. So, the punishment of them, and the pursuit of them, is clearly designed to deter others in the future from following their example. You don\u2019t want to be prosecuted and investigated and have your life exposed in the press, and that\u2019s going to make people who are tempted to be whistleblowers to think twice, and three times, before they actually act on it. I think the purpose here is much less the prevention of harm by these people in the future, it\u2019s really about sending a message to other government employees not to do this.<\/p>\n

Index:<\/strong>\u00a0You\u2019ve written a lot about how in past wartimes, the US has\u00a0made some bad decisions restricting civil liberties<\/a>\u00a0\u2013 but that we\u2019ve always snapped out of it and later restored rights that were taken away during wartime. The War on Terror seems like a different situation, in that it may not have an obvious end. Given the pattern throughout US history, should we be concerned now that we may be giving up some rights, and it won\u2019t be clear when the time has come that we can have them back again?<\/em><\/p>\n

Stone:<\/strong>\u00a0I\u2019ve always been skeptical of the notion of it being a \u201cwar without end.\u201d When you were in the middle of World War II, or the middle of the Civil War, you didn\u2019t know when it was going to end. You only knew when it was going to end after it was over. It\u2019s true this is not a conventional war where you can defeat the enemy in as neat a way as you could by capturing the Confederate Army, but I suspect this war will end. And I think the rhetoric of that is blown too much out of proportion on both sides \u2013 among those who say \u201cwe can\u2019t mess around here because it\u2019ll be a life-and-death struggle as far as the eye can see,\u201d and those who say that \u201cthere won\u2019t be an end to this, so we have to be especially wary.\u201d I\u2019m much more closely aligned with the latter. If you believe it\u2019s an unlimited war, or at least a long war, then the message you should take from that is not that we should pull out all the stops –\u2013 do whatever you can to win this war, civil liberties be damned –\u2013 but that we should be especially cautious.<\/p>\n

If you ask, \u201cWhat are the freedoms that we\u2019ve given up as a consequence of 9\/11 thus far?\u201d it\u2019s actually not that easy to identify specific things that are egregious. It\u2019s not like the Civil War, where there was a suspension of\u00a0habeas corpus<\/em>\u00a0throughout most of the United States. Or World War I, where there were prosecutions of anyone who criticised the war or the draft. Or World War II, where we had the Japanese internment.<\/p>\n

The issues that are most threatening are the questions of transparency. Because the government can\u2019t any longer suppress dissent, it has an even greater political need to prevent the public from knowing things. Whereas you could once control public discourse by making it a crime to criticise the government, you can\u2019t do that any more, which means you\u2019ve got to really do what you can to prevent people from criticising the government. That\u2019s the instability that\u2019s created here that\u2019s most troublesome.<\/p>\n

Guantanamo is a serious concern, and the temptations we fell into \u2013– both with respect to torture and with respect to detention even of American citizens \u2013 were very dangerous. But those practices were abandoned pretty quickly. I think it\u2019s the transparency issue that\u2019s the most important, and potentially the most damaging.<\/p>\n","protected":false},"excerpt":{"rendered":"

Emily Badger<\/strong> speaks to Geoffrey R Stone on what could be the US’s single most important civil liberties issue in the age of the War on Terror<\/p>\n","protected":false},"author":14,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_mi_skip_tracking":false},"categories":[1],"tags":[350,901,706,2742,198,619],"_links":{"self":[{"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=\/wp\/v2\/posts\/25148"}],"collection":[{"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=\/wp\/v2\/users\/14"}],"replies":[{"embeddable":true,"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=25148"}],"version-history":[{"count":7,"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=\/wp\/v2\/posts\/25148\/revisions"}],"predecessor-version":[{"id":79182,"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=\/wp\/v2\/posts\/25148\/revisions\/79182"}],"wp:attachment":[{"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=25148"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=25148"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.indexoncensorship.org\/newsite02may\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=25148"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}