For Transparency Sake?
posted by Danielle Citron
Recall after President Obama’s first inauguration the fuss made about his administration’s commitment to transparent government. The January 2009 Open Government memorandum seemed a fresh start for openness in the post-9/11 era. Now, four years later, drastic change in government secrecy has not materialized. Let’s take DOJ’s release to two Congressional intelligence committees the OLC memo authorizing the use of drone strikes to kill American civilians abroad considered terrorists. According to the New York Times, the administration had until 
now refused to even officially acknowledge the existence of the documents, which had been reported about in the media. This recent revelation is just one example of what we say–a commitment to transparency–is not what we do. Consider that in a 2010 memo, the DOJ endorsed “the presumption that [OLC] should make significant opinions fully and promptly available to the public.” Despite this stated goal and the stated goals of the Open Government memorandum, the Sunlight Foundation reports that DOJ is “withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012.” That is not to say that we have made no progress. As the Sunlight Foundation explains, the Obama administration published a slightly higher percentage of its OLC opinions online when compared to its predecessor. From inauguration until March 28, 2012, the Obama administration published 63% (40 of 63) of its OLC opinions online whereas Bush administration’s published 55% (54 of 98) of its second term opinions online, and published 11% (20 of 187) of its first term OLC opinions online by January 20, 2005.
February 7, 2013 at 6:22 pm
Posted in: Administrative Law, Politics
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Responses (4)
ilion - February 7, 2013 at 9:58 pm
This is the price we get to pay for having a separation of powers not between the separate branches of government but between two parties that oscillate in and out of power.
Karen Czapanskiy - February 8, 2013 at 8:42 am
Another aspect of transparency is the Department’s responsiveness to requests under the Freedom of Information Act for OLC opinions. What is OLC’s record under this and prior administrations? Years ago, OLC always took the position that its opinions were confidential lawyer-client communications, despite their obvious impact on the government policy and practice.
Danielle Citron - February 8, 2013 at 9:13 am
Absolutely, Karen! So wonderful to have you here. I agree, this is just one input for the transparency question, among so many including FOIA responsiveness. More on that, soon!
Patrick S. O'Donnell - February 8, 2013 at 9:18 am
I disagree with the first comment above, believing, with Garry Wills in Bomb Power: The Modern Presidency and the National Security State (2010), that this lack of transparency is intrinsic to the concentration of power in the executive branch since World War II, when our government became largely transformed into a National Security State (in the sense that national security presumptions, perceptions, and imperatives have been accorded an extra-constitutional power to trump those virtues of governance associated with liberal-democratic regimes). To be sure, the “war on terror” and the inchoate insecurities associated with being a declining imperial power (in no small measure because neoliberal capitalist globalization lacks nationalist subservience and loyalty*) serve as variables that exacerbate these structural features, and the power of money to corrupt our politics serves to distract those who represent us from attending to what truly matters for democratic governance in our time and place. As Wills writes,
“[T]he momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration [although Yoo and others shamelessly endeavored to give it an historico-legal imprimatur]. The whole history of America since World War II caused an inertial rolling of power toward the executive branch. The monopoly on use of nuclear weapons, the cult of the Commander in Chief, the worldwide web of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the whole National Security State, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that melded World War II and the Cold War with the war on terror—all these make a vast and intricate structure that may not yield to efforts at dismantling it. [….] A president is greatly pressured to keep all the empire’s secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not NOT use the Bomb, a modern President cannot NOT use his huge power base. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.”
* National self-deception and states of denial at both ends of the political spectrum (such as it is) continue to afflict the powers-that-be with regard to the end of the “white man’s burden” and the shattering of the messianic complex. Those with avowed commitments to liberal values and the principles and practices of democracy will have to acquire heretofore elusive habits and virtues should they wish to avoid interminable violent conflicts and maintain (or increasingly attain) a reasonable level of “universal” welfare and well-being, one no longer dependent on exploiting the resources and vulnerabilities of others around the planet (or the planet itself, for that matter). The writing is on the wall, but it’s seen as indecipherable graffiti: Charles A. Kupchan, No One’s World: The West, the Rising Rest, and the Coming Global Turn (Oxford University Press, 2012).
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