A House panel led by Rep. Darrell Issa (R-CA) voted yesterday to hold Attorney General Eric Holder in contempt after the Obama administration's first assertion of the rarely used Executive Privilege to withhold information from Congressional investigators about the botched Operation "Fast & Furious." (Full disclosure: My organization - the Government Accountability Project - represents some of the Fast & Furious whistleblowers).
I'm no fan of Rep. Issa, and suspect this contempt citation has more to do with politics than transparency, but the Obama administration is not doing itself any favors by picking this moment and this scandal as its first assertion of Executive Privilege. To the extent the Obama administration wants to combat the recent "leak" hysteria and accusations that the White House leaked highly-classified information about sources and methods for political gain, this is a horrible moment to assert executive privilege.
The president’s move to invoke executive privilege was the first time that he had asserted his secrecy powers in response to a Congressional inquiry. It elevated a fight over whether Mr. Holder must turn over additional documents about the gun case into a constitutional struggle over the separation of powers.
But, it is not the first time the Obama administration has sought to control the flow of information to the public. The Obama administration has continually asserted the state secrets privilege to shut down lawsuits seeking accountability for Bush-era torture, extraordinary rendition, and warrantless domestic surveillance. The Obama administration's record-breaking number of Espionage Act prosecutions brought against so-called "leakers," who are usually whistleblowers, sends a disastrously chilling message to all government employees: if you reveal government fraud, waste, abuse, illegality, or embarrassing information, you risk not only choosing your conscience over your career, but also over your freedom.
Executive privilege is a rarely-used tool for Presidents to keep information from Congress and the public. Past presidents have generally used executive privilege sparingly: Reagan used it 3 times, H.W. Bush used it once, Clinton used it 14 times, G.W. Bush used it 6 times, and now Obama has asserted the privilege in connection with the tragically botched Operation "Fast & Furious." It is worth remembering just how badly the "Fast and Furious" went:
From late 2009 to early 2011, A.T.F. agents allowed guns to “walk” — choosing not to interdict them swiftly in an effort to build a bigger case. But they lost track of about 2,000 guns that probably reached a Mexican drug cartel. Two of the weapons were found near a December 2010 shootout at which a Border Patrol agent, Brian Terry, was killed. It has since come to light that the bureau had used similar tactics three times during the Bush administration, although it lost track of fewer weapons.
Attorney General Holder has been battling with Congressional investigators over what information he had and when he had it, while doing damage control on the scandal for the entire administration. Now, the dispute has been elevated to a separation of powers fight, with the Obama administration on the side of keeping information secret.
The Obama administration's assertion of executive privilege brings the administration's double-speak on transparency into sharper view. The Obama administration proclaimed itself the "most transparent in history." Yet it continually fights for secrecy when the information is embarrassing to the administration, while being "transparent" about information that makes the Obama administration look good. Real government transparency does not mean that the White House can share what it wants when it wants. Real transparency means releasing both positive and negative information through official government channels, not "leaking" details of positive government actions to certain reporters while subpoenaing unfavorable reporters, prosecuting whistleblowers, and asserting executive privilege.
