Yesterday’s ruling involved an employment case. Norman Carpenter had sued Mohawk Industries after he was fired, claiming he was only fired because he’d complained that the company was hiring undocumented workers. Unbeknownst to Carpenter, the company was already being sued for allegedly trying to drive down wages by doing just that. Carpenter claimed one of Mohawk’s lawyers pressured him to recant his claims, and that he was fired because he refused.

The conflict heated up when Carpenter tried to get documents revealing what was said in that conversation with the company’s lawyer. The company refused to turn them over, citing attorney-client privilege. But the court said the company had waived that privilege already in various ways, and ordered them turned over. The company appealed.

In the appeal, the U.S. government filed a friend-of-the-court brief supporting Carpenter, but went out of its way to argue that while the employer should not have the right to an immediate appeal, if the government were involved and the disclosure involved state secrets, then the government should have that right. According to the Justice Department:

Although denials of the attorney-client privilege do not meet the Court’s stringent standards for collateral order review, denials of certain governmental privileges—in light of their constitutional grounding, rare invocation, and unique importance to governmental functions—should qualify for immediate appealability. In particular, the ordered disclosure of a Presidential communication or state secret would more directly and irremediably harm the purpose of the corresponding privilege (i.e., preserving confidentiality of top-level Executive Branch communications or protecting national security) than would disclosure of attorney-client privileged information.

The Justice Department seems to have been trying to get the court to sneak a statement into its opinion about the superior importance of executive branch communications or secrets, as opposed to an ordinary run-of-the-mill company’s privilege.

Sotomayor, in her first opinion of the new term, declined to do that.

The new directive, from Peter Orszag at the Office of Management and Budget, requires executive departments and agencies, within specific deadlines of not more than two months, to publish more information about their work online in an open format that can be retrieved and searched easily.

The progress report recounts what the administration has done so far to improve transparency, including writing new ethics rules to (mostly) prevent lobbyists from coming to work in government or sitting on its advisory boards; publishing the names of White House visitors; creating Websites that track how the government spends taxpayer money; reversing a Bush administration executive order that limited access to presidential records; and adopted a new state secrets policy. (The report neglects to mention ongoing criticism about the effectiveness of some of these measures.)

The latest transparency directive, while welcomed by open-government advocates, also highlights the fact that the sort of opennness Obama called for on his first day in office still has not taken place inside many executive agencies.

As Meredith Fuchs, General Counsel of the National Security Archive put it in a statement released after the White House announcement:

The Administration appears to realize that even eloquent statements of principle will not shift the bureaucracy’s natural and political tendency towards secrecy.

As for OMB’s new timetables to require more openness, she said:

The only thing missing is a clear enforcement regime, but if the White House, OMB, and the heads of the agencies are serious, then they will use their authority to make these changes real. In some ways that is the test of how serious the Obama Administration is about transparency.

Update: Steven Aftergood at Secrecy News notes that the new directive “does not extend to classified national security information or controlled unclassified information, both of which are to be addressed in other pending executive orders. But it does direct agencies to reduce any backlogs in Freedom of Information Act requests “by ten percent each year.”

The provision was proposed by Sen. Joseph Lieberman (I-Ct.), as Steven Aftergood of Secrecy News explains, specifically “to thwart a successful FOIA lawsuit brought by the American Civil Liberties Union” which wants the government to turn over photos documenting abuse of detainees in U.S. military custody.  I wrote about the bill and its progress last week here. Although a federal appeals court ruled last year that the government must produce those unclassified photos under the Freedom of Information Act, the government has refused, and filed a petition to the Supreme Court for review.

The Supreme Court hasn’t yet decided whether it will hear the case, though, and given that Congress may resolve the matter by hiding the unclassified photographs with this legislation, Solicitor General Elena Kagan last week asked the court to put off deciding, since it looks like Congress is prepared to decide the matter — and conceal the photographs — on its own.

“From an open government point of view, it is dismaying that Congress would intervene to alter the outcome of an ongoing Freedom of Information Act proceeding,” writes Aftergood in his blog, which has done a terrific job of exposing the government’s efforts to hide what’s supposed to be public information. Aftergood adds that the move reveals Congress doesn’t have much confidence in its own Freedom of Information Act, the federal courts interpreting it, or the principles behind it, if it feels the need to exempt this specific set of photos from the law’s purview.

On the other hand, he notes that it could be worse: the Supreme Court could have taken the case and upheld the Obama administration’s right to exempt the photos “simply because they may pose an unspecified danger to unspecified persons.” “Such a Supreme Court ruling would have left a gaping hole in the Freedom of Information Act even larger than what the Obama Administration and Congress have now created,” writes Aftergood.

Or, of course, the Supreme Court might have just done its job, and recognized, as the two lower courts who’ve heard this case did, that unclassified documents can’t be concealed based simply on the executive’s fear that exposing government wrongdoing will incite anger at the United States and endanger national security. After all, if preventing anger at the United States were a legitimate reason to conceal unclassified information about the government, then there would be considerably less Information left for the Act to protect.

Put aside whatever you may feel about AIPAC. The case amounted to the criminalization of extremely routine practices in Washington: acquiring and distributing information that’s overclassified.

Technically, I published classified information last Monday when I reported that there was an undisclosed classified Office of Legal Counsel memorandum on torture from 2007. There’s a widespread recognition that way too much information is needlessly classified. Indeed, “Ninety-five percent of what we do shouldn’t be classified at all, or it should be a much lower level of classification,” Joan Dempsey, a former senior CIA and Pentagon official, recently estimated, according to Secrecy News. Neither Steve Rosen nor Keith Weissman, the AIPAC lobbyists in question, were government employees. Even if we’re to take the Justice Department’s former line that the leak itself was felonious, they were never accused of being the sources of it, since they couldn’t have been. (That was a guy named Larry Franklin.)

During the Chas Freeman affair, when Steve Rosen was leading the charge against Freeman’s appointment to be chairman of the National Intelligence Council for alleged hostility to Israel, alleged disinterest in human rights, and insinuated nefarious loyalties to China and Saudi Arabia, I remarked that Rosen shouldn’t have gone after another pro-Israel lobbyist with whom he disagreed over Freeman while being wrapped up in the case. I shouldn’t have said that Rosen was under indictment for spying for Israel, since that was a misstatement of the case. The point that I should have made is that someone who was railroaded in this case, with its intimations of dual loyalty, should be circumspect about flinging such charges against other people. Maybe we can all take a deep breath here — doubtful, but maybe — and reflect that it’s good for everyone who desires openness in government that the flimsy charges against Weissman and Rosen are on their way out, regardless of the politics of the accused.

Well, what exactly does that mean?  What is “properly privileged or otherwise confidential”?

Yesterday, a coalition of good-government groups wrote to President Obama asking him to clarify, saying that his statement could be read as a warning to federal workers against acting as whistleblowers by communicating unclassified information to Congress. And that would contradict their legal rights.

The coalition, which includes such groups as the ACLU, American Federation of Government Employees, and Government Accountability Project, asked Obama to endorse legislation that would protect from retaliation federal employees who expose waste, fraud, abuse, suppression of federal research, and threats to public health and safety, and give them the right to a jury trial. The groups also asked that the president direct federal agency heads to institute “no-retaliation” policies for employees.

As I’ve written before, the stimulus bill, despite its many attempts at transparency at accountability, strangely neglected to fully protect federal employee whistleblowers. Watchdog groups hoped those protections would be passed in some other legislation, but so far they haven’t, and the president’s signing statement appeared to weaken the minimal protections that federal employees already have.

In their letter, the coalition — which otherwise praises Obama for saying during the presidential campaign that he’d support whistleblowers and for his executive orders and memoranda concerning open government and the Freedom of Information Act — asked the president to make clear that pulling the rug out from under federal employee whistleblowers is not really what he meant to do.

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“The FBI knowingly uses a search process that doesn’t find relevant records,” said Archive Director Tom Blanton, in a statement today. “Not only does this woeful performance lead to unnecessary litigation, but the Bureau apparently uses the same searches in its criminal investigations as well.”

Here’s more on the FBI’s dismal FOIA performance from the National Security Archive.

Since we first reported in January on the pending court case, Mohamed v. Jeppesen Dataplan, there’s been growing pressure — both from advocacy groups and now also from the mainstream media — on the Obama administration to reverse the course pursued by its predecessor.

The case involves five victims of the Bush administration’s extraordinary rendition policies, who claim they were abducted abroad and sent to foreign countries to be interrogated under torture.  With the help of the ACLU, the victims sued Jeppesen Dataplan, the Boeing subsidiary that allegedly helped the CIA carry out its policies. Although they didn’t sue the government, the Bush Justice Department intervened in the case and convinced the court to dismiss it, arguing that the very subject matter of the case — the CIA’s extraordinary rendition program — is a state secret, so allowing the victims their day in court endangers national security.

Last week The New York Times weighed in, calling the Bush administration’s argument that the entire case constitutes one big state secret “preposterous,” and urged Obama to “rethink the government’s position.”

“Should Mr. Obama decide against pursuing criminal cases for the torture and abuse of prisoners, taking any chance of an effective civil case off the table would give a pass to such misconduct and leave its victims without any legal remedy,” wrote The Times’ editorial board. “That certainly does not fit principles that the new president has so often articulated.”

The Los Angeles Times’ editorial board agreed Friday, writing: “we hope the Obama administration lawyers will show up in court Monday and reject the approach of the previous administration, letting the case go forward.”

And a story on NPR’s All Things Considered Sunday also highlighted the case as a test of Obama’s promises for transparency. Ominously, former federal prosecutor David Laufman told NPR’s Ari Shapiro that if the administration hasn’t changed course yet, it’s not likely to do so tomorrow, before a three-judge panel in a federal court of appeals. “It would be pretty unorthodox for a Justice Department lawyer to stand up in court on Monday and for the first time tell the court that it is reversing course,” Laufman said.

If the signs so far aren’t encouraging, critics can take heart that bipartisan advocacy groups like the Constitution Project and a growing number of mainstream media outlets are watching this case closely, and seem intent on holding the new administration to its promises.