Despite US President Barack Obama’s vow to make government more open than ever, the Justice Department is defending Bush administration decisions to keep secret documents about domestic wiretapping, data collection on travelers and US citizens, and interrogation of suspected terrorists.
In half a dozen lawsuits, Justice lawyers have opposed formal motions or spurned out-of-court offers to delay court action until the new administration rewrites Freedom of Information Act guidelines and decides whether the new rules might allow the public to see more.
In only one case has the department agreed to suspend a freedom of information lawsuit until the disputed documents can be re-evaluated under the yet-to-be-written guidelines. That case involves negotiations on an anti-counterfeiting treaty, not the more controversial, secret anti-terrorism tactics that spawned the other lawsuits as well as Obama’s promises of greater openness.
“The signs in the last few days are not entirely encouraging,” said Jameel Jaffer, an attorney for the American Civil Liberties Union (ACLU), which filed several lawsuits seeking the Bush administration’s legal rationales for warrantless domestic wiretapping and for its treatment of terrorism detainees.
The documents sought in these lawsuits “are in many cases the documents that the public most needs to see,” Jaffer said. “It makes no sense to say that these documents are somehow exempt from President Obama’s directives.”
Groups that advocate open government, civil liberties and privacy were overjoyed that Obama on his first day in office reversed the freedom of information policy imposed by former US president George W. Bush’s first attorney general, John Ashcroft.
The Bush Justice Department said it would use any legitimate legal basis to defend withholding records from the public. Obama pledged “an unprecedented level of openness in government” and ordered new freedom of information guidelines written with a “presumption in favor of disclosure.”
But Justice’s actions in courts since then have cast doubt on how far the new administration will go.
In a freedom of information case seeking access to the rules governing the FBI’s Investigative Data Warehouse — a computer database containing 1 billion searchable documents about Americans and foreigners — Justice lawyers told a district court in Washington last Thursday: “It is not clear that the new guidelines, once issued, will be retrospective to [information] requests that the agency already has finished processing.”
They asked the court to rule instead that the FBI has done enough.
David Sobel, attorney for the Electronic Frontier Foundation, a San Francisco-based group that advocates civil liberties in cyberspace and brought the lawsuit, said those decisions might come out differently under the new guidelines.
“The issue is whether the new administration is going to devote legal resources to fighting old battles now that the president has announced a fundamental change in the government’s approach to [information],” he said.
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