President Obama came to the White House promising a new era of openness in government. On his first full day in office he said, "The way to make government responsible is to hold it accountable, and the way to make government accountable is to make it transparent." Now, some activists say, he has not done enough to keep that promise on the national security front.
A major test of the Obama administration's openness on national security issues is coming on Thursday. The Justice Department faces a court-imposed deadline to say whether it will release some controversial classified memos from the Bush administration.
In an interview last week on CBS, Attorney General Eric Holder told Katie Couric, "This is a very transparent administration. This is going to be a very transparent Justice Department, but I'm not going to sacrifice the safety of the American people or our ability to protect the American homeland, and that is first and foremost."
Jameel Jaffer, director of the American Civil Liberties Union's National Security Project, says that rhetoric is "very encouraging, but I don't think that rhetoric has translated into reality."
An 'Imperial' Attitude?
In two high-profile national security cases, the Obama administration has taken the same position as the Bush administration. The Justice Department asked a judge to throw out the cases, arguing that letting the lawsuits go forward would compromise state secrets. One case was about sending people overseas for torture; the other had to do with spying on Americans without a warrant.
"These are all the attitudes of a supreme imperial president that were displayed by President Bush," says former Justice official Bruce Fein.
Fein was a major critic of Bush administration secrecy for the last eight years. He recently wrote a piece for Slate magazine with the headline, "Czar Obama."
"They still have this attitude of the empire state where national security trumps everything else," Fein says.
Administration officials reject that description. They point out that Obama strengthened the Freedom of Information Act. Last month, he declassified nine Bush administration legal memos about national security.
And Holder told CBS the Justice Department is reviewing every case in which the Bush administration invoked the state secrets doctrine, "just to make sure that it was properly invoked and to see in those cases where it was properly invoked if there's a way we can be more surgical, whether there's a way in which we can share more information," Holder said.
He told Couric he hopes to make the final report public. He also said there's a case in which he's likely to reverse the Bush administration's position on state secrets, but he would not go into any detail.
Another Test Looms
A bill in Congress would limit the administration's ability to stop a lawsuit through state secrets claims. Vice President Joe Biden co-sponsored a nearly identical bill last year when he was in the Senate, but now the White House won't say whether the administration supports the bill.
At a briefing Tuesday, White House press secretary Robert Gibbs told reporters that he "would have to look at what they've called for," adding, "We're happy to take a look at it and provide you some more comment."
On Wednesday, a White House official said the administration will not have a comment until after Holder produces his report on state secrets.
With all of this as backdrop, another major test of this administration's openness on national security issues is imminent. Thursday is a deadline for the Justice Department to release controversial legal memos that authorized harsh CIA interrogations. The department could release the memos in full, release heavily redacted versions of them or refuse to release them at all.
Jaffer of the ACLU, who sued to get the documents, says, "It'll be very difficult for the new administration to claim that it has made any progress whatsoever toward that promise of transparency if it's withholding these legal memos."
Jaffer is not yet as disillusioned as people like Fein. He says the Obama administration's record in the last few months has been mixed. But, he says, Thursday will be a crucial test.