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.

Americans’ surprise at the announcement may be best explained by a quick look at Obama’s domestic policies when it comes to the international war on terror — so let’s take a glance at Glenn Greenwald’s page today at Salon. Just below his discussion of Obama’s Nobel prize is a lengthy analysis of how the president, now with the help of Congress, has repeatedly suppressed evidence of war crimes committed by the previous administration.

From trying to exempt abuse photos from the Freedom of Information Act to dismissing torture cases on “state secrets” grounds, encouraging Congress to limit civil liberties protections against broad-based FBI snooping and refusing even to investigate cases where the Defense Department appears to have tortured detainees in its custody (let alone investigating the policymakers who approved of the abuse), the Obama administration has so far amassed a disappointing record on “peace”-related activities at home.

The Nobel Committee was obviously looking at different things when it made its award, and emphasized Obama’s ability to “capture the world’s attention” and offer people hope for the future. That’s a good start, and hopeful rhetoric is important and a welcome change for the so-called “leader of the free world.” But true diplomacy and progress and “peace” can’t come from hiding the brutality of the past.

So far, just as he’s promised a new diplomacy, the President has made lots of hopeful promises about a new transparency and accountability in government. He has yet to follow up on them.

In the process, he came across a curious fact. About three years ago, he says, the “entire prisoner death reporting system was turned off in Afghanistan.” And in Iraq, it was “turned off” at the beginning of 2008.

Before that time, says Miles, who’s on the board of the Center for Victims of Torture, the Department of Defense issued press releases about deaths of detainees in its custody. Miles was tracking those deaths and the role of physicians for his book, which was recently updated and republished as Oath Betrayed: America’s Torture Doctors by the University of California Press.  (The Pentagon never reported the deaths of detainees subjected to “extraordinary rendition,” he says — that is, those sent to other countries for interrogation, and sometimes to be tortured.) But the Pentagon did, at least, report some deaths of the prisoners it acknowledged it had in its custody.

Then “they just stopped reporting it,” says Miles. The press releases stopped.

It couldn’t be that no one died, Miles added, because “you have a certain expected death rate based on the size of the population. I’ve been able to trace all public death reports and can show when they turned them off.”

According to a draft paper he’s written, now being prepared for publication in the American Journal of Bioethics:

In May 2004, shortly after media published photographs of lethal abuse at Abu Ghraib prison, DoD disclosed 22 prisoner deaths; of which 12 (54%) were attributed to natural causes. DOD did not disclose another 67 deaths that occurred during that same period. Only 13 (15%) of the total 89 deaths were due to natural causes. By the end of 2008, 93 of 165 known decedents (56%) are unnamed. Death certificates are available for 37 (22%). Homicides and shelling of prisons are the leading causes of death. DoD has completely suppressed prisoner death reports from Afghanistan since 2004 and adopted a similar policy for Iraq in 2008.

The New York Times also reported back in 2004 that the Defense Department had provided incomplete or inaccurate information about deaths of prisoners in its custody.

I’ve asked several different spokesmen at the Department of Defense over the last few days to respond to this charge, to explain its policy for reporting detainee deaths, and to explain if that policy has changed since 2003. So far, I have received no response. 

But Devon Chaffee, Advocacy Counsel at Human Rights First, which reported in 2006 on about 100 deaths in U.S. custody since 2002 that it was able to learn about, was not surprised.

“Our report found that commanders failed to report deaths in custody. Sometimes they reported them days or weeks later. But there clearly was a reporting problem. Some were simply not reported at all,” she added, although Army regulations require that any deaths in U.S. custody be reported within 24 hours.

The report issued by Human Rights First, called Command’s Responsibility, found that from August 2002 until the release of the report in February 2006, nearly 100 detainees had died “while in the hands of U.S. officials in the global ‘war on terror.’”  Although the military had classified 34 of those cases as suspected or confirmed homicides, Human Rights First “identified another 11 in which the facts suggest death as a result of physical abuse or harsh conditions of detention. In close to half the deaths Human Rights First surveyed, the cause of death remains officially undetermined or unannounced. Overall, eight people in U.S. custody were tortured to death.”

In an ordinary war, the deaths of detainees would have to be reported publicly pursuant to the Geneva Conventions. But because President Bush early on declared that detainees in the “war on terror” are not technically “Prisoners of War” entitled to the protections the Geneva Conventions affords them, the U.S. military was apparently able to get around that reporting requirement.

Although at least some officials in the Obama administration have declared the “war on terror” over, the Obama DOD appears not to have resumed regular reporting on the deaths of prisoners in custody, says Miles. “It’s still shut down,” says Miles of the reporting system. “Obama hasn’t opened it up. It’s just mysterious to me.”

In the meantime, human rights organizations such as Human Rights First and others haven’t had the resources to keep their report of detainee deaths up-to-date, says Chafee.

I’ll report more as soon as I hear back from the Department of Defense about what their reporting policy is, whether it’s changed, and why human rights organizations have counted more deaths in custody than the government has acknowledged.

–

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CREW Executive Director Melanie Sloan praised the White House, saying, “The Obama administration has proven its pledge to usher in a new era of government transparency was more than just a campaign promise. The Bush administration fought tooth and nail to keep secret the identities of those who visited the White House. In contrast, the Obama administration — by putting visitor records on the White House web site — will have the most open White House in history.”

CREW sued the current administration when it refused to turn over records of visits by health care and coal executives to the White House.

But are the statements signed by Obama really the same as those signed by Bush?

Not surprisingly, longtime Democratic administration lawyers don’t think so. Walter Dellinger, for example, who promoted the use of signing statements in the Clinton administration, says the difference is that Obama’s signing statements are based on sound interpretations of constitutional law.

Signing statements “long have been used to signal the President’s belief that some aspect of a piece of legislation is unconstitutional,” Dellinger wrote in a 2006 response to the ABA, along with former Clinton officials David Barron and Martin Lederman, both now in the Obama administration’s Office of Legal Counsel. The problem with Bush’s signing statements were not that they expressed constitutional reservations about laws passed by Congress, but that they reflected “the unjustifiable arrogation of power” that Bush asserted in office.

Given the officials that populated the Office of Legal Counsel in the Bush years, it’s not surprising that his signing statements may have crossed the line from legitimate reservations to unauthorized power grabs. Obama, who so far hasn’t argued for a “Unitary Executive” or other theories of far-reaching executive power, seems to be issuing statements that at least on their face comport with generally accepted understandings of the law.

Still, his first signing statement, limiting executive officials’ communications to Congress, illustrates the potential problem. In signing the bill, which prohibits executive officials from preventing or punishing government employees’ communications to Congress, Obama added: “I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.”

The Brennan Center for Justice at New York University called that “a strike against transparency.” Noting that the law was written to protect government employees who blow the whistle on government misconduct, “allowing the heads of executive branch to ‘control’ the employees’ communications defeats the very purpose of the communications,” and thwarts Congress’ ability to exercise effective oversight. Moreover, notes the Brennan Center, the signing statement could have a chilling effect against potential whistleblowers, leaving them open to retaliation whenever the agency decides that the information revealed was “confidential.”

So Obama’s signing statements might not be unlawful, but at least some of them are politically questionable. Then again, they’re not really all that surprising. As Andrew Cohen of CBS News put it back in March when Obama issued his first of many such statements: “If you were hoping that the Obama team would come into the White House and aggressively undercut its own power it’s time to change dreams.”

In addition, The Guardian has written the British High Court requesting that it disclose the photographs “in the interest of open justice and freedom of expression.” Mohamed’s lawyer, Stafford Smith, expressed discontent with the Obama administration, largely in line with transparency advocates concerned with the torture of detainees: “It is difficult to understand the continuing policy of the Obama administration. Surely the public has the right to know the crimes committed by US personnel against a British resident like Binyam Mohamed.”

The Lieberman-Graham Amendment, also known as The Detainee Photographic Records Protection Act, is strongly supported by President Obama. It would amend the Freedom of Information Act — the same one Obama promised to construe liberally in favor of releasing information — to allow the president to conceal the photos of detainee abuse that the administration has already been ordered to produce in a pending lawsuit brought by the American Civil Liberties Union.

Oddly, the Obama administration and Senate Democrats seem to have followed the advice of Andy McCarthy at National Review, who a few weeks ago specifically suggested that the administration need not follow the court order requiring release of the photos; Congress, with the White House’s support, could just amend FOIA or adopt a new law to allow Obama to conceal the photos, and avoid having to bother with the pesky federal court system, which so far hasn’t given the administration its way.

The only problem is, how is the Obama administration going to reconcile this move with the President’s eloquent promises on his first days in office?

Remember this Memorandum on Transparency and Open Government?

Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.

Or this statement by Attorney General Eric Holder during his confirmation process?

I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law.

So isn’t it strange that the government, rather than appealing a court order pursuant to its rights under the law, now wants to defy the court by asking Congress simply to change the law?

I agree with Glenn Greenwald on this one:

If, as Obama claims, there are legitimate reasons to suppress these photos under FOIA’s exemptions (including its very broad national security exemptions), then the Supreme Court can reverse the two lower court rulings ordering disclosure — as Obama is asking it to do.  But there is no good reason to vest the Obama administration with the unilateral power to simply waive FOIA requirements simply because it loses in court and decides it doesn’t want to comply with court rulings and with current transparency laws.

And Nick Baumann at Mother Jones, who calls the photo suppression bill “an abomination that is reminiscent of the worst Bush-era excesses.”

It gives the executive branch the power to withhold an entire category of information from public scrutiny without any review. This law is Example A of the theory of the Presidency that says citizens should just trust the benevolent executive to do the right thing. Even in you oppose releasing some of the photos, I don’t see why you would want to give the White House the power to unilaterally decide what’s best. It says a lot about the Congress that members are willing to give Obama this kind of power. It says a lot about Obama that he supports this bill. Thank God for Barney Frank.

Well, except that late last week, Frank switched his vote.

In his recent speech at the National Archives, Obama said:

I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable. But I have never argued – and never will – that our most sensitive national security matters should be an open book. I will never abandon – and I will vigorously defend – the necessity of classification to defend our troops at war; to protect sources and methods; and to safeguard confidential actions that keep the American people safe. And so, whenever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions – by Congress or by the courts.

Now that the court has refused to give the president what he wants, he’s hoping Congress will. He’s won in the Senate already. Let’s see if the House Democrats will stand their ground on this one.

“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.

Image by: Matt Mahurin

President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.

After Obama issued an executive order and two presidential memoranda last week proclaiming a new transparency in the workings of the federal government, advocates for open government were thrilled.

“That was an order we were really looking for,” said Michael Ratner, president of the Center for Constitutional Rights.

Illustration by: Matt Mahurin

The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what’s known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.

One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Mohamed v. Jeppesen Dataplan, Inc. involves five victims of CIA rendition, or “torture by proxy,” as it’s also known. Abducted abroad, the men were flown by the CIA to cooperating countries whose agents interrogated them under torture. Because federal officials are usually immune from lawsuits, the men later sued the private aviation data company, Jeppesen — a subsidiary of Boeing, one of the largest federal defense contractors — that knowingly provided the flight plans and other assistance necessary for the CIA to carry out its clandestine operations.

The ACLU filed suit on behalf of this group of victims in May 2007, but the Bush administration quickly swooped in, waving the flag of the state secrets privilege. Insisting that the very subject of the lawsuit – the CIA’s rendition program – is itself a state secret, the Justice Department convinced the federal court in California, where Jeppesen is based, to dismiss the case on the grounds that it would harm national security.

By this time though, the CIA’s torture practices had already been widely publicized. As it happens, on the same day that Justice Department lawyers were in a federal court in California insisting that the case against Jeppesen be dismissed to protect CIA secrecy, CIA Director Michael Hayden was testifying before the Senate Select Intelligence Committee under oath that the CIA had waterboarded three prisoners in its custody. Earlier, Hayden had given a speech about “the CIA’s rendition, detention and interrogation programs” at the Council on Foreign Relations. Previous CIA Directors Porter Goss and George Tenet — and even President Bush, in a speech in September 2006 — had also  described and defended the program.

In fact, by the time this lawsuit was filed, the CIA’s rendition of suspected terrorists to foreign countries to be tortured had become an international scandal. Foreign countries such as Egypt, Switzerland, the UK and others that had cooperated with the CIA had been forced to investigate; those investigations had corroborated many of the allegations that are the subject of the case pending against Jeppesen.

Still, the U.S. government, now under President Obama, continues to insist in a brief filed with the U.S. Court of Appeals for the Ninth Circuit that “[t]he sensitivity of the information at issue in this litigation, and the serious harms that would result from its disclosure, compel the Government to assert the state secrets privilege.” The Obama administration has not filed any new briefs or amendments in the case.

If the court agrees, none of the victims of rendition in this case — or likely, in any other — will get his day in court.

“These victims not only haven’t been compensated, they haven’t even been heard,” said Ben Wizner, one of the lead ACLU lawyers handling the case. “Torture victims deserve acknowledgment and compensation.”

Take the case of one of Wizner’s clients, Binyam Mohamed. A 28-year-old Ethiopian citizen and legal resident of the UK, Mohamed was arrested at the airport in Karachi, Pakistan on immigration charges in April 2002. For the next three months, he was held in secret detention, interrogated and tortured by Pakistani authorities, he says; he was also questioned by US and British agents.

In July, according to the lawsuit, he was turned over to the exclusive custody of the United States, whose agents stripped, shackled, and blindfolded him, then dressed him in a tracksuit and dragged him on board a Gulfstream V jet aircraft. With assistance from Jeppesen Dataplan, Mohamed was flown to Morocco, where he was turned over to local police and interrogated under torture for the next 18 months. Mohamed says he was routinely beaten to the point of losing consciousness and, as the ACLU describes in its legal brief, “a scalpel was used to make incisions all over his body, including his penis, after which a hot stinging liquid was poured into his open wounds.”

In January 2004, Mohamed was returned to the custody of U.S. officials, flown to Afghanistan and tortured again, he said, this time at a secret CIA prison. After months of beatings and interrogation following sleep and food deprivation, according to the lawsuit, he was transferred to the prison at Guantanamo Bay, where he remains today.

The stories of Abou Brital, Ahmed Agiza, Mohamed Bashmilah and Bisher Al-Rawi are similar, and much in their accounts is corroborated. Ahmed Agiza’s rendition and torture in Egypt, for example, has been investigated and publicly acknowledged by the government of Sweden, where he was seeking asylum when he was captured. (He’s now serving 15 years in an Egyptian prison for membership in a banned Islamic organization.) Jeppesen’s role is also public record, revealed in documents produced in separate inquiries by the Council of Europe and the European Parliament.

Meanwhile, Britain’s High Court of Justice, which corroborated much of Binyam Mohamed’s story in its own investigation, in August ruled that Mohamed was entitled to obtain documents from the British government to establish that he was tortured so he can seek to exclude evidence extracted by torture as unreliable if he is ever prosecuted by U.S. authorities.

Curiously, however, part of the government’s “state secrets” claim rests on the need to protect information about the participation of U.S. allies in the CIA’s rendition program.

“It would be a remarkable irony if this Court were to affirm the dismissal of this suit in order to protect from disclosure the roles played by other nations – when those very nations are engaged in proceedings that continue to expose precisely the relationships and information that the United States here characterizes as ‘state secrets’, ” the men’s lawyers write in a brief filed with the court of appeals.

The Department of Justice declined to comment on this case. In its brief filed before President Obama took office, however, it argues, largely on the basis of a classified declaration of former CIA Director Michael Hayden submitted “in camera” – that is, for exclusive review by the judge — that release of any information pertaining to this case would harm national security. Hayden’s statement “explained more fully than was possible on the public record the scope of information subject to the privilege assertion, and the harms that would flow from its disclosure,” Justice Department lawyers wrote. Although the victims perhaps “cannot appreciate fully the reasons for the district court’s conclusion . . . or comprehend the substantial harm to national security and foreign relations that could reasonably be expected to result from litigating this case,” the court of appeals should rest assured that the government’s reasoning is sound, write the government lawyers.

Contacted last week by TWI, a Justice Department spokesman would not say whether the new Obama administration would change its position in this case. He confirmed only that oral arguments are scheduled for Feb. 9.

If the Obama administration maintains the government’s position in this case, said Wizner, it would further the Bush administration’s strategy of turning the state secrets privilege into a blanket immunity for the most egregious and unlawful government action.

“Every single civil torture case that’s been filed has been dismissed at the pleadings stage on what non-lawyers would call a technicality,” said Wizner, referring to the state secrets and government immunity defenses that have succeeded in other torture cases.

In another lawsuit filed by the ACLU in 2006 on behalf of rendition victim Khaled El-Masri, for example, a federal court in Virginia accepted the government’s same argument that the subject of the entire case was privileged and dismissed the lawsuit. El-Masri was a German citizen and car salesman when he was abducted in 2003 by U.S. authorities, transported to a secret CIA prison in Afghanistan and tortured, until he was released without charge in 2004, dumped on a hill in Albania. The Fourth Circuit Court of Appeals, an ideologically conservative court long dominated by Republican judges, affirmed the lawsuit’s dismissal. (The Ninth Circuit Court in California that will hear the Jeppesen case is considered more liberal.)

“The Bush administration said over and over not just that these programs were necessary, but that they were legal,” insists Wizner. “But they’ve never allowed any court to rule on it.”

None of the victims involved in the case against Jeppesen were available to talk to TWI, but in an op-ed in the Los Angeles Times, Khaled El-Masri wrote after his case was dismissed in 2007:

“Above all, what I want from the lawsuit is a public acknowledgment from the U.S. government that I was innocent, a mistaken victim of its rendition program, and an apology for what I was forced to endure. Without this vindication, it has been impossible for me to return to a normal life.”

Advocates hope the new administration will stop using the state secrets defense to avoid providing that kind of acknowledgment.

“Instead of this notion that the entire subject matter of the lawsuit is a state secret, there should be a parsing of the evidence,” said Sharon Bradford Franklin, senior counsel at the Constitution Project, an independent nonprofit think tank that issued a comprehensive report last year on the need to reform the state secrets privilege. “The new administration might have a valid state secrets claim about some particular pieces of evidence, but it shouldn’t be the entire lawsuit. We all know there’s been this extraordinary rendition program. The government should consent to an independent review by a judge as to what evidence should or should not be disclosed.”

More broadly, advocates have been pressing for a law such as the bipartisan State Secrets Protection Act, introduced by Sens. Edward Kennedy (D-Mass.) and Arlen Specter (R-Penn.) last year, that would codify and narrow the state secrets privilege “to restore the role of the courts as an independent check,” says Franklin. They’ve also asked the Obama transition team to change the government’s policy on its use.

“We’ve asked that the Attorney General put in place a much better system for reviewing when the Justice Department will assert the state secrets privilege,” said Meredith Fuchs, General Counsel for the National Security Archives at George Washington University. “Because once it’s asserted it’s tremendously powerful.”

In a memorandum issued to the heads of all agencies last week, President Obama wrote: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”

Advocates will watch closely to see how the Obama administration will handle this and other cases that under the Bush administration were stymied by government secrecy.

“Because the Bush administration was so secretive and it played out in so much litigation,” said Fuchs, “what happens in these cases is a good test of whether the Obama administration really means what it’s saying.”

Former Bush administration Attorney General John Ashcroft encouraged information officers to vigorously search all the Freedom of Information Act exemptions before releasing anything, which yielded all sorts of excuses for not releasing documents. President Obama today issued a memo instructing “all members of his administration to operate under principles of openness, transparency and of engaging citizens with their government,” according to a White House press release.

The Memo reportedly instructs the Attorney General to issue new guidelines to the government implementing those principles.

Given the subject of the order, it’s a little odd that it isn’t online yet, but I hear the computers are down over at the White House–maybe crashed from the flurry of new activity?

Columbia Journalism Review reports that Obama has likely reverted to the old Clinton administration rules, which under Attorney General Janet Reno encouraged openness and the release of documents. (Apparently CJR hasn’t seen the order yet either.)

CJR notes that by 2006, a study of Justice Department data by the Coalition of Journalists for Open Government found that FOIA requests were taking longer and were less likely to be fulfilled than at any time since 1998, when the department started tracking the data.

Update: In case anyone’s skeptical that Obama really means to change the policy, the new president also sent out a Memorandum For the Heads of Executive Departments and Agencies with this missive on Transparency:

Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.  Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.  Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public.

Update II: As a reader kindly pointed out below, the Obama administration has, since this earlier post, made all executive orders and presidential memoranda available.  They’re at http://www.whitehouse.gov/briefing_room/PresidentialActions/