August 13, 2012 | By Trevor Timm

This Week in Transparency: Congress Votes for Secrecy, Leak Hysteria, and a FOIA Request Fulfilled

Congress' Aversion to Transparency

While EFF has continually criticized the the Obama administration for their lack of transparency, it's becoming clear that as much—if not more—blame rests with Congress. As we explained recently, new "anti-leaks" legislation proposed in the Senate would restrict press freedoms, markedly increase government secrecy, and do significant damage to the public’s right-to-know. But the Senate has passed other laws increasing secrecy in recent years, and has blocked other proposals that would increase openness in government, as classification expert Steven Aftergood detailed in this excellent blog post.

Congress has so far refused to increase disclosure around FISA and warrantless wiretapping, despite the government’s admission that they have, “on at least one occasion,” violated the law. Congress has also prohibited bulk declassification that has led to the National Declassification Center falling far short of its declassification goals, and removed disclosure provisions in the Intelligence Authorization Act.

NCIS Pressures Wired's Danger Room to Give Up Sources, Censor

In what has to be the most absurd leak investigation ever, last week, Wired's Danger Room blog revealed they were questioned several times by the Naval Criminal Investigations Service (NCIS) about a document they published on their website five years ago—yes, five years. The document in question was a 2006 request by Marines in Iraq for an advanced laser system and is marked ”For Official Use Only."  The document, which was never even classified, described an “energy weapon that doesn’t exist,” and as Danger Room said, “reads almost like a spoof of the laser system out of Real Genius.”

Despite this, for the past six months NCIS has been asking Wired to reveal the source of the document, and even asked them to take down the post. Danger Room, commendably, through its attorney, "declined to provide the information, or to answer any questions related to the reporting of the story." The story is a good example of just how ridiculous leak hysteria has infected the government—even if the material is a five year-old unclassified document.

Senate Finally Acts on Privacy and Civil Liberties Board

The Senate confirmed four of the five nominees to the Privacy and Civil Liberties Oversight Board (PCLOB), a panel created in 2004 to serve as an advisory board to the executive branch. Jim Dempsey, Elisabeth Collins Cook, Rachel Brand, and Patricia Wald were all confirmed as part-time members. The board has not had any members for the past four years and still lacks a chair—which prevents them from exercising their full power. President Obama has nominated David Medine for the latter position, but the Senate did not act on the nomination.

In 2009, we called on President Obama to prioritize the nomination of board members so that the PCLOB could contribute to ongoing debates over government surveillance, cybersecurity, and more. After four years of being dormant, the board will finally come back into operation, albeit not at full strength. 

A Brief, Shining Moment For Government Transparency

And, last but certainly not least, we would be remiss if we didn’t highlight a bright spot in government transparency. Last year, EFF submitted Freedom of Information Act requests to DHS Federal Law Enforcement Training Center (FLETC), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) seeking information about the agencies’ use of data extraction devices to search cell phones and laptops. To its credit, FLETC produced nearly two thousand pages of records in response to the request in a little under a year (somewhat beyond the 20-day FOIA requirement, but better late than never). In contrast, ICE found no responsive records; and, while CBP initially located 96 responsive pages, the agency withheld every page in full. EFF appealed that decision to the FOIA appeals branch within CBP.

On administrative appeal, in an amazing (and, for the federal government, sadly unusual) display of adherence to the disclosure requirements of FOIA, CBP did a complete about face and released 91 of the previously withheld 96 pages.1

The response to our appeal was a well-written, thoughtful, eight-page letter outlining the specific exemption claims (some pages were released with redactions) and the reasons supporting those redactions. At the beginning of CBP’s analysis, on page two of the appeal, CBP wrote:

In his first day in office, President Barack Obama issued a memorandum that made clear that his administration would dedicate itself to the principles that motivated Congress to enact the FOIA. The President explained that “accountability requires transparency” and demanded that federal agencies “adopt a presumption in favor of disclosure in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.”

Hear, hear! It’s fantastic to see President Obama’s transparency mandate embraced and put into action by a federal agency. Unfortunately, as a recent Washington Post analysis of FOIA requests showed, this type of response is far too rare. If only more FOIA analyses started from this assumption, there’s no question FOIA would be a better tool for holding our government accountable.

So, while we normally use this space to highlight the ridiculousness of government secrecy, it’s also important to acknowledge those government officials that take their obligation to transparency seriously. CBP FOIA Appeals Branch and DHS FLETC – thank you (at least this time) for helping contribute to transparent and accountable government.

  • 1. And, in fact, EFF had previously litigated with CBP—and lost—over the five pages that were withheld in full.

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