Dim Spots in Obama’s Promise of Sunshine

     (CN) – Opaque behavior from government agencies tasked with national security have undermined the Obama administration’s strides toward transparency, a new report found.
     OpentheGovernment.org, a coalition of civil libertarians, library groups, journalists and others, characterized the track record as “Sunlight Overshadowed” in its 2012 Secrecy Report, released on Wednesday.
     The group says it had applauded Obama’s records-management policy after reports found that the system was having trouble keeping up with the transition from a paper-based system.
     “Minus the Obama Administration’s steps, the federal government would continue to have a hard time preserving, finding, and sharing government information over time,” it said in a statement.
     Commitment to the Freedom of Information Act has also “resulted in real improvements at some agencies,” the group found.
     But Obama hardly lived up to his promise to run the “most transparent administration in history,” it added.
     “Pres. Obama must rue the day he said that,” OpentheGovernment.org’s executive director Patrice McDermott told Courthouse News. “It was grandiose. It was idealistic. Our side beats him up with it. The right beats him up with it.”
     The strides Obama made has made toward transparency occurred on a “subterranean level,” she said.
     “The picture is not rosy, not totally dark either,” McDermott added. “We’re starting to see the little cinders of dawn.”
     On his first day of office, Obama issued an executive order instructing Freedom of Information Act officials to grant requesters a “presumption of openness.”
     But understaffed record keepers have not been able to process a growing number of requests, causing backlogs to balloon by 20 percent, the report states.
     On Oct. 1, the administration will launch on online tracking system for the public to check the status of their requests and contact officials about delays, McDermott said.
     The report also credits Obama with a decline in signing statements, which recent presidents use to distance themselves from constitutionally questionable legislation that they fail to veto.
     As a senator, Obama had slammed President George W. Bush for writing 161 such statements on bills such as the Patriot Act that increased government surveillance powers after Sept. 11, 2001.
     Obama has added 19 signing statements to controversial bills this term, the report states.
     In one such statement, Obama wrote that he had “serious reservations” about provisions of the 2012 National Defense Authorization Act, which allows the military to indefinitely detain U.S. citizens.
     A federal judge struck down those provisions as unconstitutional this week. The government has since demanded to stay the injunction pending appeal.
     According to the report, Obama also continued, but dramatically reduced, the executive branch’s reliance on executive privilege and state secrets.
     Obama invoked privilege once to quash a subpoena for information on the Fast and Furious program, a botched strategy to penetrate Mexican drug cartels by infusing the market with planted firearms.
     George W. Bush invoked privilege six times, and President Bill Clinton used it five times, according to the report.
     In stark contrast to Bush’s 48 invocations of state secrets between 2001 and 2008, Obama invoked state secrets eight times in his first three years, according to the report.
     Openthegovernment.org called for an end to the state secrets privilege.
     “The state secrets privilege is a creature of judge-made law under the Federal Rules of Evidence, lacks grounding in federal statutes and, many have argued, any grounding in the Constitution,” the report states. “Its use has frustrated judicial redress for constitutional wrongdoing, including government assassination, torture, kidnapping, illegal surveillance.”
     In other areas, the numbers are not improving, the group found.
     As the use of National Security Letters increases, a record number of U.S. citizens have security clearances, and only a fraction of a percent of classification expenditures go toward declassifying documents, the report states.
     The website’s 2011 report criticized Obama for his record-busting use of a dusty statute, the Espionage Act of 1917, to punish those accused of leaking classified information to the press.
     Before Obama assumed office, prosecutors charged the statute only three times in U.S. history.
     Obama’s attorneys have used it six times in his first term, in what has been dubbed a “war on whistle-blowers.”
     McDermott explained that some of these prosecutions were “holdovers” of the Bush administration, including those against anti-torture and surveillance whistle-blowers John Kiriakou and Thomas Drake.
     But “it’s pretty cowardly” for Attorney General Eric Holder not to have dropped them, she said.
     Though prosecutors eventually withdrew claims against Drake, a federal judge blasted the U.S. attorneys for keeping the man in limbo until the eve of trial.
     The new report does not rehash last year’s criticisms about these prosecutions, but it points out that whistle-blowers who take their claims through Obama’s Office of Special Counsel have had better results in recent years.
     “According to the OSC, in [Fiscal Year] 2012, the Office of Special Counsel is on pace to secure 156 favorable actions for federal employees who have been victims of reprisal for whistleblowing or other prohibited personnel practices – an 86% increase over FY2011 and an all-time high for the agency,” the report states. “The previous high was 92 favorable actions in 2010.”
     Appeals are overwhelmingly unsuccessful, the report states.
     The Federal Circuit has ruled against whistle-blowers 226 times and only three times in their favor since 1994, according to the report.
     Obama established a National Declassification Center through executive order to supplement the historical record with once-secret documents that have collected dust for a quarter-century or longer.
     The new agency will fall far short of Obama’s goal to eliminate the 25-year backlog by the end of 2013.
     “It is shocking – or it ought to be – that the classification system is not fully responsive to presidential authority,” Federation of American Scientists director Steven Aftergood said in the report. “Beyond that, the impending failure to reach the assigned goal is an indication that current declassification procedures are inadequate to the task at hand.”
     Lack of funding, and imbalanced priorities, complicate the matter, according to the report.
     A half of 1 percent of classification expenditures goes toward declassification, while 99.5 percent funds securing classification, according to the report.

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