Sunshine Week: FOIA and the most transparent administration in history

Kevin JensenLast Wednesday, Kentucky Senator Rand Paul took to the Senate floor for almost 13 hours in a classic Mr. Smith Goes to Washington-type talking filibuster, holding up the confirmation of the new CIA head, John Brennan, over the Obama administration’s inability to answer a few simple questions about the targeted killings of American citizens with drones.

As a result of Paul’s epic filibuster, Eric Holder sent the Senator a letter confirming that no, the president does not have the authority to kill an American citizen on American soil without trial if they are not engaged in combat. Now that wasn’t so hard, was it?


What the Obama administration still hasn’t done, however, is release the full legal justification for its targeted killing program to even all of our congressmen — let alone the public — doing little to validate Obama’s claims that his administration is the most transparent ever.

But with political pressure mounting at home and even European parliamentarians issuing a statement expressing concern over the “legal basis, as well as the moral, ethical and human rights implications of the United States’ targeted killing programme,” maybe it’s time our government just released their full legal justifications — it’s not as if they have anything to hide, right?

And since this happens to be Sunshine Week, I couldn’t think of a better time for the Obama administration to release its full legal justification for its targeted killing program and to make good on its avowed historic transparency.

The premise of Sunshine Week is that open government is good government. It’s a national initiative to promote a dialogue stressing the importance of a transparent government and freedom of information to a well-functioning democratic republic.

The week gets its name from Sunshine Laws — the nicknames given to transparency laws such as the Freedom of Information Act (FOIA). Anybody can use FOIA requests to get all sorts of information from the government, from government contract bids to military and historical records.

FOIA requests aren’t just reserved for professional journalists, either, any person has a right — enforceable in court — to access any federal agency records unless they’re restricted from public disclosure by either one of nine exemptions or one of three special law enforcement record exclusions.

According to an analysis by The Associated Press released on Monday, the Obama administration has actually answered more FOIA requests from the public to see government records than the year before, seeming to carry through on the statements Obama made in a memo on his first day in office: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”

Unfortunately, the same AP analysis revealed that the Obama administration has also cited more legal exceptions to censor or withhold material requested under FOIA than ever before.

With about a 22 percent increase over the previous year, the government invoked the national security exemption to withhold information at least 5,223 times — a substantial increase from the 3,805 cases during Obama’s first year serving as president.

While Obama has made some marginal improvements in accessibility — which can only be expected given our technological advances — the ACLU and the Electronic Frontier Foundation have accused the Department of Homeland Security of imposing exorbitant processing fees to dissuade the disclosure of information, and complain about massive processing delays.


Reps. Darrell Issa and Elijah Cummings, two of the top lawmakers on the House Oversight Committee, sent a letter pointing out the federal government’s failure to update their regulations involving FOIA despite a 2009 directive ordering them all to adopt a “presumption of openness,” citing a backlog of information requests, an excessive use of exemptions and potentially illegal fee assessments.

Ask Obama, though, as somebody recently did on a Google+ Hangout, and he’ll be more than happy to reiterate that “this is the most transparent administration in history,” even while he’s still in the midst of a FOIA court battle with the ACLU over the release of the Office of Legal Counsel memo’s providing the legal justification for Obama’s targeted killing program.

Ultimately, our government is supposed to represent “we the people.” Government employees all work for us and get paid by our tax dollars, every government document belongs to us — barring obvious exceptions.

Open government is good government. This is something Obama used to believe in — used to champion, even. His rhetoric remains, but it’s getting harder and harder to believe him. Happy Sunshine Week everybody!