Obama Secrecy Watch: Don't Trench on My 'Executive Prerogatives'

As we previously noted, our colleague Weston Kosova gave the Obama administration some much-needed grief on Friday for refusing a federal judge's recent order to turn over documents showing how big telecommunications firms lobbied to get immunity for their participation in President Bush's warrantless wiretapping program.

But that is actually only one of many examples of how Obama appointees are standing up for Bush-era secrecy.

In just the last few days, virtually unnoticed by most of the news media, administration officials have:

  • Rejected a new Freedom of Information request for White House visitor logs (despite their announced intention to start making such documents public).
  • Appealed, yet again, to invoke "state secrets" to block a lawsuit that might shed light on the CIA's extraordinary rendition of terror suspects to countries that practice torture.
  • Gotten Congress to pass legislation that would prevent graphic photographs of detainee abuse by the U.S. government from ever becoming public. (Update: Obama on Thursday signed into law a homeland security bill that exempts from the photos from the Freedom of Information Act.)

And all of this is in spite of Obama's vow—in a memoon the first full day of his presidency—to create "an unprecedented level of openness" in government.

We intend to keep track of these matters regularly on Declassified.

Here's another one that seemed to have slipped through the radar. Even as Democratic Rep. Jan Schakowsky, chair of the House Intelligence Subcommittee on Oversight and Investigations, revealed her plan to probe five cases where the CIA withheld information from Congress this week, Robert Litt, the Obama-appointed general counsel of the Director of National Intelligence's office, citing "executive prerogatives," reasserted the president's objections to a House-passed Intelligence Authorization Bill. The objection: it mandates disclosure of covert activities to all the members of the intelligence committees of Congress, not just the cozy, so-called Gang of Eight of congressional leaders (the Democratic and Republican leaders of both chambers as well as the respective chairs and vice chairs of the two intelligence committees).

What is not generally understood is that Obama doesn't just oppose full briefings of the intelligence committee about covert activities. He has actually threatened to veto the entire Intelligence Authorization Act if it includes the current language (inserted by House Democrats) for full intelligence briefings.

"It is the opinion of the administration that that requirement [for full intel-committee briefings] does trench on executive prerogatives that are afforded to the president," Litt told the House intel panel in a hearing Tuesday, using nice lawyerly language that has large implications.

The question of which members of Congress get briefed about secret activities the U.S. government is engaged in may sound like a highly arcane legal dispute. But it's not. It was the closed-door briefings to the Gang of Eight that was at the heart of many of the hottest controversies of the Bush era, including warrantless wiretapping and the use of "enhanced interrogation" techniques (such as waterboarding) of terror suspects.

The briefings were unannounced and episodic with no staff present. Gang of Eight members were barred from taking notes (and from talking about what they had heard with any of their aides or colleagues afterward). The briefings left members befuddled about what they had been told and what it might mean. After one such briefing about the wiretapping program, Sen. Jay Rockefeller (then vice chair of the Senate intel committee) wrote a letter to chief briefer, Dick Cheney, saying that since he was "neither a technician nor an attorney" and since he was unable "to consult staff or counsel," he couldn't "fully evaluate, much less endorse these activities." But that didn't matter. Instead of sharing his concerns with the rest of the intelligence committee, Rockefeller put a copy of his letter in a sealed envelope and locked it in a safe—where it sat for more than two and a half years, unknown to his colleagues and the public until the wiretapping program was revealed by The New York Times.

Such is what passed for congressional oversight.

The idea that Obama has now endorsed a perpetuation of such practices—on the grounds of upholding presidential privileges—is unsettling to more than a few public-interest watchdogs and yet another instance of what they say is starting to become a pattern.

"The administration promised transparency," says Jameel Jaffer, the veteran ACLU litigator who has helped spearhead the group's groundbreaking Freedom of Information–exposing documents about secret intelligence activities. "But what we are seeing in a disturbing number of cases is an endorsement of the very same arguments that the Bush administration made."

Stay tuned.