"A new era of openness?": Disclosing intelligence to Congress under Obama.

AuthorClark, Kathleen
PositionPresidential Power in the Obama Administration: Early Reflections

As a candidate, Barack Obama promised "a new era of openness," and his administration has taken some significant steps to increase transparency in the executive branch. But it has also continued the Bush administration's policy of invoking the state secrets privilege to avoid judicial scrutiny of controversial warrantless surveillance and torture programs. Many commentators have noted the parallels between the Bush and Obama policies on disclosing sensitive information to courts, but they have paid little attention to whether the Obama administration has continued Bush administration policies regarding the disclosure of sensitive information to Congress.

This Essay fills that gap, and looks in detail at the Bush and Obama Administration responses to legislative proposals for expanding intelligence disclosures to Congress. It reviews the Bush and Obama Administration positions on legislation that would require intelligence disclosure to Congress, and finds that there are substantial similarities--though not identity--between the Bush and Obama Administration approaches. Both Administrations have opposed disclosure of covert actions to the full intelligence committees and the disclosure of internal executive branch legal advice. On these most sensitive intelligence issues, we will see increased disclosure to Congress only over the objection of President Barack Obama.

  1. INTRODUCTION

    The Obama Administration came into office with great expectations for increased transparency. As a candidate, Barack Obama promised "a new era of openness," pledging that he would "restore the balance we've lost between the necessarily secret and the necessity of openness in a democratic society." (1) On his first full day in office, he issued memoranda proclaiming that his "Administration is committed to creating an unprecedented level of openness in Government," (2) directing the Attorney General to issue new guidelines to agency heads about the Freedom of Information Act ("FOIA"), "reaffirming the commitment to accountability and transparency," (3) and an executive order on presidential records, reversing the George W. Bush executive order that permitted the heirs of deceased former Presidents to invoke constitutional privileges and prevent disclosure. (4) Since then, Attorney General Eric Holder issued a memorandum reversing John Ashcroft's 2001 FOIA memorandum, and indicating that the Justice Department would defend nondisclosure only if disclosure will harm "an interest protected by one of the statutory exemptions ... or [if] disclosure is prohibited by law." (5) The Justice Department released long-sought legal memoranda about the CIA's torture program, (6) and the Office of Management and Budget directed executive branch agencies to make high value data sets freely available on the web. (7)

    But the Obama Administration has disappointed open government advocates by opposing efforts to hold accountable those involved in several controversial Bush Administration intelligence programs: warrantless surveillance, torture and extraordinary rendition. President Obama personally opposes a proposed truth commission to investigate the interrogation and warrantless surveillance programs, (8) preferring to look forward rather than backward. (9) Obama personally intervened and reversed a Justice Department decision to abide by an appellate court decision that the FOIA requires the government to release photographs of U.S. military personnel abusing prisoners in Iraq and Afghanistan. (10) Instead, the executive branch sought Supreme Court review of that decision, and while the case was pending, convinced Congress to revise FOIA in order to avoid disclosure. (11)

    In a move that has received much attention in the press and blogosphere, the Obama Administration has favored secrecy over transparency to avoid judicial scrutiny of the Bush Administration's warrantless surveillance and torture policies. (12) Although the Administration instituted new internal executive branch procedures for invoking the state secrets privilege, it has not changed the executive branch's stance in court. In lawsuit after lawsuit seeking redress for the Bush Administration's warrantless surveillance and torture policies, the Obama Administration has argued that the state secrets doctrine requires courts to dismiss these cases, using the same arguments (and even nearly identical affidavits) as the Bush Administration. (13) On the question of whether courts can serve as an accountability mechanism for controversial intelligence policies, there is little difference between the positions of the Obama and George W. Bush Administrations. (14)

    While the parallels between the Bush and Obama policies regarding the disclosure of sensitive information to courts has received a great deal of attention, less attention has been given to how the Obama Administration compares with the Bush Administration in disclosing sensitive information to Congress. This Essay examines the Obama and Bush Administration policies toward disclosing intelligence-related information to Congress. (15)

    To make such a comparison, one would ideally compare the quantity and quality of intelligence information that each Administration actually disclosed to Congress. But when the executive branch discloses this information to Congress, it generally provides it only to the intelligence committees in secret, and the committees keep that information secret. (16) The lack of publicly available data about the actual information disclosed to Congress makes it impossible to perform that kind of comparison.

    What is publicly available, however, is information about the Bush and Obama Administrations' positions on proposed legislation that would require increased intelligence disclosure to Congress. In every year since the New York Times's December 2005 revelation that the Bush Administration had engaged in warrantless surveillance, (17) members of Congress have introduced legislation to increase intelligence disclosures to Congress, and the executive branch has expressed a position on that legislation. By looking in detail at those proposed legislative measures and the executive branch's positions on them, it becomes apparent that the Obama Administration has, to a significant degree, continued the Bush Administration secrecy regime.

  2. DISCLOSING INTELLIGENCE TO CONGRESS

    Up until the mid-1970s, the executive branch disclosed to Congress little information about intelligence operations, and Congress performed little oversight of the intelligence agencies. (18) In 1975, the Senate and House convened ad hoc investigatory committees to examine intelligence abuses. (19) Those committees held extensive hearings and wrote reports about the intelligence agencies. (20) As a result of those ad hoc investigations, both Chambers established permanent committees tasked with intelligence oversight. (21) In 1980, Congress passed legislation requiring the executive branch to keep the congressional intelligence committees "fully and currently informed" of intelligence activities. (22)

    Congress enacted a special--more limited--notification process for covert actions (defined as government activities intended "to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly" (23)). For covert actions, Congress permitted prior notice to be limited to just eight members of Congress (rather than the full intelligence committees) where "the President determines it is essential to limit prior notice to meet extraordinary circumstances affecting vital interests of the United States." (24) This small subset of legislators is referred to as the "gang of eight:" the chairs and ranking members (25) of the intelligence committees, the Speaker and Minority Leader of the House of Representatives, and the Majority and Minority Leaders of the Senate. (26) Since 1980, Presidents have used this "gang of eight" procedure to notify Congress of covert actions. (27)

    While the statutory "gang of eight" procedure applies only to covert actions (as opposed to other intelligence activities, such as intelligence collection), the George W. Bush Administration used the "gang of eight" procedure to inform Congress of its warrantless surveillance and torture programs. (28) After the program was disclosed in the New York Times, some members of the intelligence committees who had not been part of the "gang of eight" expressed anger that they had not been informed. (29) Democratic members of the "gang of eight" were put on the defensive for not having done more to oppose the program, but protested that secrecy prevented them from taking any action to oppose the program.

    Of particular concern was whether the surveillance program was even legal. Prior to disclosure of the program in the New York Times, at least one member of the "gang of eight" privately expressed concern about its legality. (31) After its disclosure, several congressional committees sought--but were denied--access to the Justice Department memoranda that provided the legal justification for the program. (32)

    In response to these controversial Bush Administration intelligence policies and its practice of notifying only the "gang of eight," some members of Congress proposed legislation to ensure broader intelligence disclosure to the intelligence committees. In each of the four years following the New York Times disclosure of the surveillance program, members of Congress introduced intelligence authorization bills that would have increased intelligence disclosure to Congress. The next Section identifies the intelligence disclosure provisions of the intelligence authorization bills for fiscal years ("FY") 2007 to 2010, and examines the Bush and Obama Administration positions on those provisions.

    To make this comparison, I reviewed the official Bush and Obama Administration...

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