CREW: DOJ is a roadblock to open government

from CREW:

Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Attorney General Eric Holder expressing concern over the Department of Justice's (DOJ) failure to abide by President Obama's commitment to government transparency and accountability.

Despite policy directives from President Barack Obama and Attorney General Holder mandating a presumption of openness in administering the Freedom of Information Act (FOIA), DOJ continues to operate - as it did during the Bush administration -- under a presumption of secrecy, deliberately withholding information about what DOJ is up to and why.

Read more here.

Judicial Watch: White House Visitor Logs are Subject to the FOIA

Judicial Watch, a public interest organization that has sued seeking White House visitor logs from January 20, 2009 to the present, is taking the Justice Department to task for a statement the Department made in an April 21 court filing. The Justice Department claimed White House visitor logs are not subject to the FOIA, arguing cases cited by Judicial Watch in its Motion for Partial Summary Judgment were "incorrectly decided" and that releasing the logs would compromise national security.

Judicial Watch maintained that the visitor logs are subject to FOIA as they are "created by" the U.S. Secret Service and that they remain "under agency control."

For more information, click here.

Holder Troubled by FOIA "Exceptions" used by Administration

Attorney General Eric Holder told the Senate Judiciary Committee he was troubled by the findings of The Associated Press regarding FOIA statistics that showed the administration was citing FOIA exceptions to withhold records more often, even as requests for information has decreased. He said he would find out why the use of exceptions has increased, despite President Barack Obama's directions for more openness.

Read more here.

Critics Say Using Confidential Informants Compromises Judicial System

Critics of the government's use of confidential informants are calling for more safeguards and guidelines to establish accountability against the secrecy of having thousands of informants on the government payroll. Despite guidelines established by the DOJ and the FBI, a 2005 Inspector General report shows that in 85% of the cases reviewed, the guidelines weren't followed.

Loyola Law School professor Alexandra Natapoff has authored a news book, Snitching, in which she says informants commit all sorts of crimes that compromise the judicial system and betray the national integrity.

Read more here.

The Robert Jackson Steering Committee Seeks Bush-Era Legal Memoranda Regarding Torture

On Thursday, January 7, an organization of attorneys, journalists and advocates filed a FOIA request for the DOJ's Office of Professional Responsibility's report regarding the conduct of President Bush's top lawyers in the Office of Legal Counsel who authored memoranda purporting to authorize torture and aggressive war. The request also seeks a 10-page rebuttal of the 2008 report by then-Attorney General Michael Mukasey.

See the request and transmittal letter here.

American Small Business League to Recoup Legal Fees from the DOJ

Now that the Small Business Administration (SBA) has dropped its appeal of a California federal court's legal fees award, the American Small Business League will collect its attorneys' fee award from the Department of Justice.  

The case stemmed from the SBA's denial of the League's request for names of firms receiving small business contracts and the amounts awarded in 2005 and 2006.  The SBA claimed it didn't have records of the names and that the information was stored at the General Services Administration.  The Court found the SBA's argument "curious" and awarded the SBA to hand over the records and pay the League's attorneys fees in May 2008.  

Click here for details on what the League says the records reveal about the Bush administration. 

Holder Announces DOJ Policies re: State Secrets Privilege

Attorney General Eric Holder today released new policies and procedures for the Department of Justice regarding the invocation of the state secrets privilege in litigation. The policies go into effect on October 1.

The policies are designed to "strengthen public confidence that the U.S. Government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests."

Under the new policies, the Justice Department will not defend an assertion of the privilege from a government department or agency without the personal approval of the Attorney General. It also establishes a State Secrets Review Committee comprised of senior DOJ officials designated by the Attorney General.

When seeking to invoke the privilege, the department or agency must make a sufficient showing that the privilege is necessary to protect information that could lead to significant harm to national defense or foreign relations.

The new policies announce that the Justice Department will not invoke the privilege to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment; to restrain competition; or to delay the release of information undeserving of the state secrets privilege.

More from the Washington Post here and The Hill here.

Justice Department argues for protection of Cheney's interview

The Justice Department is arguing that the release of Dick Cheney's interview with prosecutors concerning the CIA leak case could create a chilling effect, Politico reported. Department attorney Jeffrey Smith argued his case in front of Judge Emmet Sullivan in an FOIA lawsuit, which seeks the release of Cheney's interview records. Smith asked that the records be kept secret for five to 10 years so that it would be more likely for the information to be used "for historical purposes and not for political embarrassment." Sullivan has not stated his opinion on the case but did say at one point that the Justice Department seemed to be asking him to create a new vice presidents' exemption to the FOIA.

President Barack Obama’s Justice Department is arguing that former Vice President Dick Cheney’s interview with prosecutors in the CIA leak case should remain secret for five to 10 years to persuade high-level government officials to cooperate in future investigations.

“In making public the vice pesident’s interview, you will chill them,” Justice Department attorney Jeffrey Smith told Judge Emmet Sullivan during a two-hour hearing Tuesday on a Freedom of Information Act lawsuit seeking release of records about the Cheney interview, which took place in 2004.

Sullivan sounded highly skeptical of the government’s arguments, but he said he had not decided how he would rule in the case. "Where do I draw the line? This happened five years ago,” the judge said. “Would there be impediments to putting this information in a time capsule?”

More here.

Also, My Take On the DOJ Argument To Withhold Cheney Interview from The FOIA Blog: "The government has stated that Cheney did not ask for confidentiality when interviewed, meaning exemption 7(D) of the FOIA doesn't apply."

And, Saving Dick Cheney from 'The Daily Show'? from Politico: “The government doesn’t want to have what’s in these documents end up on a late-night comedy show,” Sullivan said.

Release of CIA torture report delayed

The ACLU is challenging the delayed release of the CIA's 2004 inspector-general report, The Washington Independent reported. The 200-page report, which is supposed to be declassified as part of an FOIA lawsuit agreement, will not be released before Aug. 31, according to the Justice Department. The ACLU says that the CIA and Justice Department have missed three deadlines already for the disclosure during the five months they've had to review the report.

Word’s coming now that the Obama administration is seeking to withhold the CIA’s 2004 inspector-general report on the implementation of its former “enhanced interrogation regime” until August 31. The ACLU, which had an agreement with the administration to declassify the report as part of a Freedom of Information Act lawsuit, is going to challenge the administration’s efforts. More soon.

Update: Just got a hold of the court documents. Check them out after the jump.

The Justice Department argues that the volume of material it needs to go through in the CIA’s 2004 inspector general report is just too great to meet any pre-August 31 timetable. Not only is the IG report itself 200 pages, that’s just one of 319 documents under review as part of the case.

More here.

Nisbet appointed director of OGIS

Miriam Nisbet was appointed as the director of the Office of Government Information Services within the National Archives and Records Administration. Nisbet has been working in Paris as the director of the Information Society Division of the United Nations Educational Scientific and Cultural Organization. Other positions she has held include: legislative counsel at the American Library Association, special counsel for information policy at the National Archives and deputy director of the Office Information and Privacy at the Department of Justice.

Acting Archivist of the United States Adrienne Thomas announced today the appointment of Miriam Nisbet as the director of the Office of Government Information Services (OGIS) within the National Archives and Records Administration. OGIS, an organization newly established under the OPEN Government Act of 2007, will provide policy guidance and mediation services for FOIA activities government-wide.

In making the announcement, Archivist Thomas said, “Ms. Nisbet is a devoted public servant who is uniquely qualified for this position. She has dedicated her entire professional life to working for open access to government records from the perspective of both the federal government and non-governmental institutions, as well as the international community. We are also delighted to welcome her back to the Archives, where she was Special Counsel for Information Policy in the 1990’s.”

“I am tremendously excited about the opportunity to be part of a new office and a new approach to make the Freedom of Information Act work better, for the requesters who seek access to records and for the Federal officials who administer the law,” said Ms. Nisbet.

More here.

Obama follows Bush in keeping details of FBI database secret

President Barack Obama refused to reverse a Bush policy that protected information about the FBI's Investigative Data Warehouse. "As a result, there is no public list of all the databases the FBI sucks into this computer warehouse; no information on how individuals can correct errors about them in this FBI database; and no public access to assessments the bureau did of the warehouse's impact on Americans' privacy," the AP reported. The warehouse is five years old and contains more than 50 databases.

Despite a pledge to open government, the Obama administration has endorsed a Bush-era decision to keep secret key details of an FBI computer database that allows agents and analysts to search a billion documents with a wealth of personal information about Americans and foreigners.

President Barack Obama's Justice Department quietly told a federal court in Washington last week that it would not second-guess the previous administration's decisions to withhold some information about the bureau's Investigative Data Warehouse.

The Electronic Frontier Foundation, a digital rights advocacy group, had sued under the Freedom of Information Act to get records showing how the FBI protects the privacy of Americans whose personal information winds up in the vast database.

More here.

Obama releases memos describing torture techniques

The Huffington Post posted the four torture memos released by President Obama on Thursday. The memos, which were issued by the Office of Legal Counsel, detail interrogation techniques -- "exactly what the Bush administration authorized for 'high value detainees' in U.S. custody."

As part of an ongoing court case, the Department of Justice released on Thursday memos issued by the Office of Legal Counsel between 2002 and 2005, detailing techniques used for interrogation of terrorism suspects. In doing so, President Obama declared:

"While I believe strongly in transparency and accountability, I also believe that in a dangerous world, the United States must sometimes carry out intelligence operations and protect information that is classified for purposes of national security. I have already fought for that principle in court and will do so again in the future. However, after consulting with the Attorney General, the Director of National Intelligence, and others, I believe that exceptional circumstances surround these memos and require their release."

Certain aspects of the documents are redacted -- including the names of CIA officials -- but the evidence is of enough weight that Senate Judiciary chairman Patrick Leahy already felt compelled to offer the following statement.

More here.

For the press release from the Department of Justice, click here.

Looming test for Obama

The Obama administration has not yet revealed whether it supports a Congressional bill that would limit its ability to stop a lawsuit through state secrets claims, NPR reported. Vice President Joe Bident co-sponsored a similar bill last year in the Senate.

President Obama came to the White House promising a new era of openness in government. On his first full day in office he said, "The way to make government responsible is to hold it accountable, and the way to make government accountable is to make it transparent." Now, some activists say, he has not done enough to keep that promise on the national security front.

A major test of the Obama administration's openness on national security issues is coming on Thursday. The Justice Department faces a court-imposed deadline to say whether it will release some controversial classified memos from the Bush administration.

In an interview last week on CBS, Attorney General Eric Holder told Katie Couric, "This is a very transparent administration. This is going to be a very transparent Justice Department, but I'm not going to sacrifice the safety of the American people or our ability to protect the American homeland, and that is first and foremost."

More here.

A look inside the AP's success, struggles with FOIA requests

During Sunshine Week, the AP recounts how it has used data from FOIA requests to break national stories. This story also lists the organization's frustrations with responds to FOIA requests. For example, the Homeland Security Department typically takes 58 days to respond to an expedited request but recently rejected an AP request for a speedy response by citing that it couldn't be that urgent because no other news organization had requested those documents.

President Barack Obama is promising to reinvigorate the Freedom of Information Act by opening more of the government's filing cabinets without a fight. It can't happen soon enough for the people awaiting replies to more than 150,000 requests for information.

Behind the headlines, The Associated Press wrestles with bizarre administrative hurdles and jaw-dropping contradictions trying to use the law; some recent ones are described below.

Obama has begun to deliver, but there are conflicting signs about how far he will go.

More here.

Former information policy director provides insight on past, advice for future

ProPublica reporter Jennifer LaFleur interviewed Dan Metcalfe, who founded the U.S. Department of Justice's Office of Information Policy and ran it for more than 25 years. Metcalfe says he has never witnessed a president pay so much attention to FOIA than Obama. Metcalfe advocates a "readily foreseeable harm" standard, which would require FOIA officers to release information that technically falls within an FOIA exemption unless it immediately occurs to them that disclosure could result in harm. He also suggests asking agencies to review "what they have been withholding from the public on that basic since 9/11 and to reconsider that in light of current conditions."

Dan Metcalfe directed the U.S. Department of Justice's Office of Information Policy for more than 25 years. He founded the office in 1981, under the Reagan administration, and retired in 2007. During that time he drafted two seminal memos on FOIA. One during the Clinton years instructed government agencies to be more open and another in 2001 -- known as the "Ashcroft memorandum" -- that reversed that decision.

He now teaches law at American University and directs the Collaboration on Government Secrecy, the only academic center of its type at a law school.

More here.

Judge orders fed. govt. to release documents

From the AP:

A judge has ordered the federal government to turn over documents related to the shooting of a fleeing drug smuggler or to explain why it is withholding them. The shooting led to the imprisonment of two Border Patrol agents and later a commutation of their sentences by President George W. Bush. The judge, Richard Leon of Federal District Court, acted in response to a suit by Judicial Watch, a conservative watchdog group, which got no response from the Departments of State, Justice and Homeland Security after filing Freedom of Information Act requests two years ago for records relating to the smuggler, Osvaldo Aldrete Davila. Judicial Watch says it wants the government’s records to answer questions about the prosecution of the agents and how regularly the Justice Department offers immunity to drug smugglers to help prosecute law enforcement officers.

More here.

Obama fails three early tests

Could his promise have been too good to be true?

The Obama administration, which vowed to usher in a "new era of openness in our country," either has delayed action on requests for access to government records or refused to disclose them in three early, high-profile tests of the pledge.

This week, Justice Department lawyers announced that they'd continue to assert the state secrets argument made by the Bush administration in a lawsuit alleging that five men were tortured abroad in U.S.-run prisons.

In a separate case, the Obama Justice Department has agreed with the Bush administration — at least initially — that the news media shouldn't have immediate access to court records in the ongoing Guantanamo detainee litigation.

More here.

ACLU tests whether Obama will keep his word

Now that President Obama has advised federal officials to process records requests with a presumption of the openness, the ACLU is trying to obtain at least 50 secret Justice Department memos which supposingly justify or provide details of interrogations or wire tapping. The McClatchy Washington Bureau site provides links to the request letter, a list of the missing memos and more on Obama's executive order. Click More Here below.

Dozens of secret documents justifying the Bush administration's spying and interrogation programs could see the light of day because of a new presidential directive.

The American Civil Liberties Union asked the Obama administration on Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.

For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.

More here.