by Matthew L. Schafer
President Obama’s Administration has prosecuted more government whistleblowers than all other presidents combined and has subpoenaed nearly as many journalists as President Bush did during his first term. Some also suggest that agencies under Obama have released fewer government documents than Bush’s Administration did. In light of these precedents, President Obama’s open government supporters have recasted their roles as adversarial ones.
“I’ll make our government open and transparent, so that anyone can ensure that our business is the people’s business,” Obama said on September 22, 2008 during the 2008 campaign. “No more secrecy.”
Obama seemingly kept this promise. Shortly after being sworn in in 2009, Obama signed two executive orders aimed at increasing government transparency. One order was issued to emphasize that requests for information about executive agencies’ activities should be met with a presumption that the information ought to be released. Another was issued to limit former presidents’ ability to invoke executive privileges.
At the time, the Sunlight Foundation, a non-profit dedicated to an open and transparent government, called the signings “extremely heartening.”
“While we don’t know yet if he will be signing any [more] executive orders, rest assured that if he does, none of them will be about making government more open and less corrupt,” the Sunlight Foundation said today.
The Sunlight Foundation is not the only transparency advocate that has criticized the Obama Administration’s approach to openness in government. In the context of prosecuting whistleblowers for disclosing classified information, the National Press Club called the Administration’s approach a “war on leaks.” Mother Jones, a liberal publication, said Obama was waging war against whistleblowers. And, POLITICO explained that the Obama Administration “unleashed an unprecedented wave of prosecutions over leaks.”
However the Administration’s approach to maintaining secrecy is styled, it is clear that it has embraced the Espionage Act to punish whistleblowers more than other administrations. The Act is a hundred-year-old law passed during World War I that allows the federal government to prosecute anyone who divulges classified information under certain circumstances. Originally, it carried the Orwellian title the Defense of Secrets Act.
Over the past four years, the Obama Administration has prosecuted seven whistleblowers under the Espionage Act. Before the Administration’s seven prosecutions, the Act had only been invoked three times since 1917.
Over the past four years, the Obama Administration has prosecuted seven whistleblowers under the Espionage Act. Before the Administration’s seven prosecutions, the Act had only been invoked three times since 1917. While some of the seven whistleblowers charged are no longer being prosecuted, others have been sentenced to years in prison.
Among those charged is John Kiriakou, a CIA analyst, who detailed the CIA’s use of waterboarding against suspected terrorists. The criminal complaint against Kiriakou argued that he unlawfully disclosed information about the “Central Intelligence Agency’s Rendition, Detention, and Interrogation Program.”
On August 6, 2012, the Obama Administration filed a criminal complaint against James F. Hitselberger, a contract translator who allegedly disclosed secret documents to the Hoover Institution at Stanford University. This comes despite the government conceding that Hitselberger “has no history of violence and did not disseminate the classified information to a ‘foreign power.’”
The Fourth Circuit is currently considering another Espionage Act case. In that case, Jeffrey Sterling, a former CIA analyst, allegedly leaked documents to James Risen, a New York Times reporter. The information leaked detailed a botched U.S. attempt to sabotage Iranian nuclear operations. The Fourth Circuit will decide whether the government can force Risen to name his source at trial.
It is impossible to say how much less transparent the Obama Administration has been than previous Administrations, if at all. If nothing else, however, the Obama Administration’s promise to increase transparency has made the lack of transparency all the more stark.
Risen is not alone. Under the Obama Administration, several journalists have been subpoenaed. These subpoenas either ask for unpublished notes from journalists or the names of journalists’ sources. While it is impossible to tell exactly how many subpoenas are issued against journalists, the numbers appear to be on the rise.
“An unusually large number of subpoenas seeking the names of anonymous sources has been issued by federal courts in a remarkably short period of time to a variety of media organizations and the journalists they employ,” one prominent First Amendment lawyer told the Senate in 2005.
At the federal level, all subpoenas against journalists must be approved by the Attorney General, according to Department of Justice regulations. Under those regulations, the government must first make “[a]ll reasonable attempts . . . to obtain information from alternative sources before considering issuing a subpoena to a member of the news media.”
Lippmann Would Roll recently requested information from the Offices of the Attorney General, Deputy Attorney General, and Associate Attorney General regarding the number of subpoenas made under the regulation. According to the Department’s response to LWR’s Freedom of Information Act (“FOIA”) request, the Department of Justice considered 54 subpoena requests and approved 43 in the past eleven years.
According to the Department, subpoenas against the media were sought for cases relating to “murder, terrorism, trafficking in narcotics, bribery, leaks of sensitive information, public corruption, insider trading, gang activity, jury tampering, bomb threats and other serious crimes.”
Under a request to the Criminal Division of the Department, the Reporters Committee for Freedom of the Press discovered that 89 subpoenas were approved by the Attorney General for use by the Criminal Division over a similar time span.
The disparity between the two FOIA requests is most likely attributed to “the Offices of the Attorney General, Deputy Attorney General and Associate Attorney General . . . not maintain[ing] all media subpoena files.” As such, more subpoenas may be on file with the Criminal Division, Civil Rights Division, National Security Division, the Tax Division, or any other division of the Department.
Unfortunately, the Department invoked three exemptions to FOIA in responding to LWR’s request, which allowed it to deny releasing the 382 documents it had relating to the enforcement of the Department’s regulation relating to subpoenaing journalists. Appealing these types of denials to a FOIA request is very difficult.
The total denial of this FOIA request may evidence the Obama Administration’s approach to FOIA requests in general – deny them. This, of course, runs counter to the presumption of disclosure under FOIA, which was emphasized in Obama’s first executive order. Anecdotal evidence aside, however, it is still unclear whether the Administration is statistically less likely to release documents than other administrations.
In 2012, for example, the Department of Justice under Obama either fully or partial granted 49% of the FOIA requests it received. At the same point in 2004, the Bush Administration fully or partially granted 56% of the FOIA requests made to the Department. In 2010 and 2011, the Department complied with more than 55% of requests either in whole or in part.
It is impossible to say how much less transparent the Obama Administration has been than previous Administrations, if at all. If nothing else, however, the Obama Administration’s promise to increase transparency has made the lack of transparency all the more stark. Looking at the Administration’s record thus far in the cases of prosecuting whistleblowers, subpoenaing journalists, and granting FOIA requests there is little reason to expect increased transparency in Obama’s second term.