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Jul 31 2012

The Most Transparent Administration in History Strikes Again

Yet another example of the Obama administration — you know, the promised “most transparent administration in history” — using legal procedures to fight against actual transparency in court. A court has allowed them to continue to pretend that documents that were already made public are still so secret that they are not subject to the Freedom of Information Act. The ACLU reports:

This morning a federal judge ruled that the government is free to continue pretending that the contents of State Department diplomatic cables already disclosed by WikiLeaks are secret. The case concerns an ACLU Freedom of Information Act request seeking 23 embassy cables that had been previously released by WikiLeaks, posted online, and widely discussed in the press. Thegovernment had responded by releasing redacted versions of 11 cables and withholding the other 12 in full.

The cables we requested reveal the diplomatic harms of widely criticized U.S. government policies, including torture, detention and rendition of detainees, detention at Guantanamo, and the use of drones to carry out targeted killings. The State Department claims that the withheld cables are classified, and thus so secret that they cannot be released—despite the fact that they are already accessible to anyone in the world with an internet connection and a passing interest in current events.

In order to avoid releasing its own copies of the cables, the government was required to prove to the court that doing so would cause harm to national security. It offered explanations of why releasing secret State Department cables might harm relations with foreign governments or disclose sensitive information, but failed to explain what harm would come from releasing cables that are already available to the public in full, and that the government has admitted have been leaked. The court accepted the government’s lackluster arguments, and did not even discuss the requirement that when information is already in the public domain, the government must explain what additionalharms would occur from re-release of that information by the government itself.

The court also rejected the ACLU’s argument that the government has officially acknowledged that the cables released by WikiLeaks are authentic government documents. This matters because under FOIA, if the government has officially acknowledged something in public, it cannot refuse to release the same information in court. The court took the incredible position that, because the ACLU’s FOIA request “made no mention of the WikiLeaks disclosure” and instead requested each of the 23 cables by date and title, the government’s admission that it possesses all 23 of the cables is not an admission that the cables released by WikiLeaks are authentic. The court was only able to reach this conclusion because it refused to compare the versions of the cables held by WikiLeaks and those held by the government side by side. Doing so easily confirms that the cables are identical, and thus that the cables identified by the government are the same ones already disclosed to the public.

So why does this matter, if the documents are already available? It matters because the ACLU is trying to show what the government works so hard to conceal when they redact documents, which is important in showing how dishonest the government is when they redact and when they reject many legitimate FOIA requests on national security grounds. This is quite similar to what both the Bush and Obama administrations did in the Al Haramain case, where they initially turned over a document that proved that the organization had been the target of illegal warrantless wiretaps, then argued that even though that document had been turned over, it was still secret and everyone had to pretend it didn’t exist and the group could not use it in court to establish standing.

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  1. 1
    Michael Heath

    Ed writes:

    Yet another example of the Obama administration — you know, the promised “most transparent administration in history” — using legal procedures to fight against actual transparency in court.

    Ed, this is at least the second straight blog post on U.S. executive branch transparency where you’ve made the exact same fatally defective argument. Actually a gut-cringingly bad argument which if made by a YEC, we’d all justifiably deride for their inability to think coherently.

    Examples of defects do not inform of us on how much improvement the Obama Administration has made over previous administrations in regards to transparency, if any. All it does is inform us their defect rate is not zero, which isn’t saying much of anything since no reasonable, well-informed person would expect zero defects from such a large complex institution, having only recently been taken over, with a long tradition of being opaque.

    And as remedial as this defective argument is, the last time I called you out on it there were actually other commenters who defended the very behavior which has us lambasting conservatives and religionists when they deploy it to carry their preferred narrative.

    So as it stands right now, I have no idea how well the Obama Administration is doing regarding transparency, simply because I’ve seen no metrics which shows their current marginal change relative to previous Administrations and their defect trend since assuming office. I only know their defect rate is greater than zero, where I would have bet everything I own in 2008 it would be even if Mr. Obama’s committment was genuine and it was his #1 priority.

  2. 2
    Bronze Dog

    Headdesk worthy, and yet it’s what I’ve come to expect with government secrets.

    In a way, it’s like they’re trying to abuse a game’s espionage mechanic or bug, where something is still technically secret, in order to manipulate badly programmed AI opponents. The problem is that there aren’t any AIs in this game session, and humans have different methods for detecting suspicious behavior.

    In another way, it’s like they’re doing it for the bizarro-principle of the matter. They can say Obama’s administration technically protected the secrets on their watch, thus they didn’t shame the White House, therefore they get politician brownie points or something.

  3. 3
    frankboyd

    Well, haw haw. “The Obama Administration” = “The Bush Administration With Full Sentences”. Anyone who is surprised by this….

  4. 4
    slc1

    Let’s not let the federal judge in this case off the hook. He made a ridiculous and preposterous decision.

    The reason that the Obama Administration and its predecessors can get away with this crap is the failure of the 3rd branch of government, the Judiciary, to call them on it. As long as the Judiciary shirks its responsibilities, the executive branch of government will continue to pull this rubbish.

  5. 5
    davem

    Best part of this is that Bradley Manning is entirely innocent, since, apparently, he hasn’t leaked any of these cables. Looking forward to his imminent release…

  6. 6
    John Horstman

    @1: Actually, you may be failing to read for comprehension. Nowhere (in this piece at least – possibly your previous critique had an impact) did Ed assert that the Obama administration is NOT the most transparent on account of the lack of transparency on this issue. He does assert that they are not transparent on this issue; the implication I get is that the whole “most transparent administration in history” doesn’t mean a hell of a lot if we’re still faced with this kind of obfuscation. I read it as a critique of the use of the phrase by the administration at all because the phrase, even if it were technically correct (and I don’t know that it is – I’d certainly have an easier time accepting the assertion if they WEREN’T obstructing inquires related to documents that are already public), doesn’t really tell us anything if it’s possible to simultaneously the most transparent and entirely opaque. (One could also argue that the use of “most transparent” does imply a certain level of transparency, one past a midpoint on the continuum of transparency to opacity, to not be disingenuous; the more-genuine phrase might instead be “least opaque”, implying we haven’t passed the half-way point between transparency and opacity, but this administration is still farther from the opacity extreme than any other.)

  7. 7
    Ed Brayton

    Michael –

    By your reasoning, every time I post about police misconduct and note the irony of Scalia’s “new professionalism” statement, I’ve made a “gut-cringingly bad argument” because I haven’t provided a metric to measure overall whether police misconduct has gotten better or worse. But it remains true that every example of actions in conflict with declarations of principle — and I’ve given lots and lots of them on transparency, from continuing to fight against FOIA requests for visitor logs in court to the use of the state secrets privilege to the unprecedented pursuit of whistleblowers — is worth pointing out. And the fact remains that government transparency advocates have generally been appalled by the Obama administration’s record, for good reason. That doesn’t mean they’ve been wrong in every instance, of course, but it certainly makes such instances worth pointing out when they happen.

  8. 8
    Jordan Genso

    Ed wrote:

    So why does this matter, if the documents are already available? It matters because the ACLU is trying to show what the government works so hard to conceal when they redact documents, which is important in showing how dishonest the government is when they redact and when they reject many legitimate FOIA requests on national security grounds.

    If the administration had turned over all of the documents without redactions, then the ACLU wouldn’t have achieved their goal. So shouldn’t we be thanking the administration? [/snark]

    And I agree with Michael Heath’s comment @1.

  9. 9
    Jordan Genso

    OK. I also agree with #6 and #7, so now I’m conflicted.

  10. 10
    Michael Heath

    John Hortsman writes to me:

    Actually, you may be failing to read for comprehension. Nowhere (in this piece at least – possibly your previous critique had an impact) did Ed assert that the Obama administration is NOT the most transparent on account of the lack of transparency on this issue.

    Ahem, see blog post title and content I quoted. Twice in this very blog post Ed holds up the promise of this Administration being the most transparent, and then uses an example which clearly insinuates they’re failing on that relative standard. In addition this is the last of several blog posts on this topic over the past three years where Ed makes his point vividly clear, which is, the Obama Administration is failing miserably to be the most transparent administration ever; where Ed supports his conclusion they aren’t with mere anecdotal behavior. We get no actual comparison from Ed on how the Obama Administration compares overall to previous Administrations – a comparison required to support the argument their failing relative to other Administrations. So the reading comprehension here is clearly yours.

  11. 11
    Michael Heath

    Ed writes:

    By your reasoning,

    Well, I didn’t invent how to think and argue logically, I’m merely using the same standard we all use in this forum against those we criticize. If you were going to make a normative argument and compellingly claim in some cases even one defect is unacceptable, that would be a good argument. But you’re not, on this subject you’ve consistently make an assertion about one entity’s performance relative to others while avoiding how they actually compare.

    Ed writes:

    By your reasoning, every time I post about police misconduct and note the irony of Scalia’s “new professionalism” statement, I’ve made a “gut-cringingly bad argument” because I haven’t provided a metric to measure overall whether police misconduct has gotten better or worse.

    Actually yes, but I don’t follow your law enforcement blog posts very carefully. If I did laud your point on Scalia, where I don’t recall ever doing so, than I was suffering from confirmation bias; to which I’m not immune though I’m trying.

    Ed writes:

    But it remains true that every example of actions in conflict with declarations of principle — and I’ve given lots and lots of them on transparency, from continuing to fight against FOIA requests for visitor logs in court to the use of the state secrets privilege to the unprecedented pursuit of whistleblowers — is worth pointing out. And the fact remains that government transparency advocates have generally been appalled by the Obama administration’s record, for good reason. That doesn’t mean they’ve been wrong in every instance, of course, but it certainly makes such instances worth pointing out when they happen.

    Of course they’re worth pointing out. And I’ve welcomed your criticisms of the Obama Administration’s behavior. But I’m not criticizing your condemnation of the Obama Administration, I’m instead criticizing the quality of your argument where you misinform your readers. That’s by your conveying that the Obama Administration is failing to be the most transparent ever without actually providing any evidence at all this is true.

  12. 12
    Ichthyic

    Well, I didn’t invent how to think and argue logically

    your ego is always on much better footing than your logic.

    always.

  13. 13
    Michael Heath

    Ichthyic to me:

    your ego is always on much better footing than your logic.

    always.

    And true to form you avoid directly confronting my argument but instead avoid it while insulting me. I don’t mind the insults since it says nothing about me and a lot about you; I only note such to insure you know that I know you got nothin’ – as we see here once again with this response.

    What does bother me is to encounter liberals who depend on the most remedial fallacies conservatives use in order to avoid confronting inconvenient truths. Fortunately for all of us your type of thinking doesn’t wield the kind of power within the liberal movement or Democratic party enjoyed by those who think like this in the conservative movement – who do dominate.

  1. 14
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    [...] as secret as the documents and plots themselves. Even documents that are already public can now be retroactively re-secret-ised, which is a bit of an own goal as it lets the public see how innocuous classified documents now [...]

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