Sunshine week represents a national effort to promote government transparency and openness. But what has become most apparent to me this week is just how closed and secretive our government has become. During his campaign in 2008, President Obama consistently promised a more open government and criticized his predecessor for his lack of transparency. But President Obama has a long way to go -- especially with regard to whistleblowers -- before he can claim that he has lived up to his campaign promises.
As we celebrate Sunshine Week, it's important to keep in mind some of the most troubling ways in which the administration has failed to ensure transparency and openness:
- The administration's war on whistleblowers promotes government secrecy, prevents the exposure of government illegality and wrongdoing, and risks destroying our right to a free press.
- The government has yet to disclose its legal justifications for its targeted killing program.
- The Obama administration last year rejected more FOIA requests - claiming national security - than in any previous year.
- Patriot Act interpretations that give the government broad surveillance powers remain secret.
- FISA Court rulings are still secret.
- President Obama has issued 20 national security directives, only 5 of which have been made public.
This list hardly seems like it represents Obama's promise to lead the most transparent administration in history.
In other Sunshine Week news, yesterday I attended a wonderful panel hosted by the Brennan Center for Justice on classification reform. The panel initiated some interesting conversations on the reasons for over-classification and ways in which we might address over-classification problems. But in keeping with the cloud that hovers over us this week, I found troubling some of the comments made by panelist Robert Litt, General Counsel in the Office of the Director of National Intelligence. Litt claimed that he does not believe there is conscious abuse with regard to incorrect classification decisions and that individuals who make incorrect classification decisions should not be disciplined. And in response to panelist J. William Leonard's (Former Director of the Information Security Oversight Office) comments about how harmful erroneous classification decisions were in the case of my client, Thomas Drake, Litt was wholly unapologetic. In fact, he commented only that reasonable minds can differ with regard to classification decisions.
Drake blew the whistle on fraud and illegality he witnessed as a senior executive at the National Security Agency. He was charged under the Espionage Act, only to have his case fall apart before trial and the DOJ drop all 10 felony charges. The documents Drake shared with the press were entirely UNCLASSIFIED and the documents he was accused of retaining never should have been classified (Leonard filed a complaint against NSA and DOJ arguing that the individuals responsible for the improper classification should be punished). The fact that Litt made it seem so trivial that there could be a difference of opinion with regard to classification decisions is extremely troubling. It's one thing to make an error when the error can be easily rectified without causing tremendous damage. But that certainly was not the case for Drake. An error that forms the basis of the government being able to criminally prosecute someone - which in the case of people charged under the Espionage Act often results in a ruined career, bankruptcy, and stigma - is certainly not trivial and cannot be brushed away with a simple comment that reasonable minds can differ. Not surprisingly, when I asked Litt to address the fact that the documents in Drake's case were wrongly and retroactively classified, Litt stated that he had "no interest" in commenting on the matter.
In honor of Sunshine Week, Drake will speak this afternoon at a luncheon reception at The National Press Club. I'm confident that after people hear his story, few reasonable minds could differ as to whether he has unfairly paid a grave price for blowing the whistle.
Other great articles on the government's lack of transparency have been written this week by Glenn Greenwald and Kevin Gosztola.