Over the weekend, my organization, the National Security Archive issued a report on FOIA implementation, Sunshine and Shadows: The Clear Obama Message for Freedom of Information.

The purpose of the report was to test the impact of President Obama's first full day issuance of a Memorandum on the Freedom of Information Act (FOIA) and Attorney General Holder's Guidelines on FOIA.

This was the eighth "FOIA Audit" that the Archive has issued since 2003. We use a very specific methodology for the reports. We make FOIA requests to all agencies on the same day asking for the same thing and then report on the results. That data is supplemented by data gleaned from the agencies' own annual reports. So, what we report is what they tell us. This year we added in another statistic that we drew from statements of the Department of Justice which DOJ claimed show that there is an increase in disclosure from agencies. We tested that statistic, however, to also look at what has been denied at agencies.

While our findings showed unevenness in the implementation of the Obama FOIA policies, those findings are mainly a reality check on how difficult it is to shift the course of the ship of state. Indeed, when we ran a similar audit eight years ago to look at implementation of then-Attorney General John Ashcroft's FOIA guidelines, we found very limited impact at the agencies in the short run. Over time, of course, that changed and the Ashcroft policies did impact FOIA processing and release. Moreover, the prior FOIA policy, combined with the many other secrecy policies of the Bush Administration severely interfered with the public's right to information. Thus, to use the metaphor in the title, those were cloudy and dark days for access. Today the challenge of fixing FOIA takes place in the context of the Administration's Open Government Initiative and improved executive orders issued about both the President Records Act and classified national security information. The sun seems to be creeping through the clouds.

The Archive's latest report finds many signs of progress. The message delivered by President Obama is clear - the government belongs to the people and the government should be transparent.

At some agencies this message has been adopted immediately and the agencies have not only changed the tone of their training, but have changed actual practices to reflect the president's message, including not using certain exemptions, documenting why a discretionary exemption is used to deny information, and setting up systems for electronic posting of requested records. Among the agencies that changed their practices are many of the largest - DOD, Commerce, Energy, HHS, Interior, EPA, NRC, Social Security Administration. Still others significantly enhanced their training. Some agencies, however, either responded that they have no records or did not respond to the FOIA request at all. For the most part these were smaller agencies that do not process a significant number of FOIA requests. But, there were some notable exceptions, including the Central Intelligence Agency and the Department of the Treasury.

Looking at whether agencies are now releasing records to the public that would not have been released in the past, i.e., one of the Department of Justice's metrics for improvement, we examined agencies' releases in whole, releases in part, and added an examination of denials in whole. We found that agencies such as the Department of Justice, OMB, and Department of Agriculture were both releasing more and denying less. Some agencies were denying more and releasing less. The vast majority of the agencies had indicators going both ways.

These numbers were not adjusted for quantity of requests processed, which was part of the point of the analysis. Raw trend of information disclosure does not mean that agencies are exercising their discretion to release information that they are permitted to release. Some more analysis is merited, but the report surmises that concrete changes in practices are most likely to make a difference in day to day agency release decisions.

Although many agencies did not yet report concrete changes to the Archive, the report recognized that there is a management challenge associated with changing practices and culture across all federal agencies. Chief FOIA Officer reports required by President Obama that will be made public in the next few weeks are likely to include news about more recent changes that were not captured by the Archive's research, which began in September 2009.

One of the surprises for me was that there are still FOIA requests as old as 18 years pending at agencies (NARA and DOD in particular). I had hoped we would find much shorter ages for the oldest requests. Having said that, although we did not compile data on how many old requests are carried year to year, I understand that that measure of the backlog has reduced significantly. 

Today, President Obama issued a statement for Sunshine Week recommitting to open government. White House Chief of White House Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer recognized and reinforced the principles espoused by the president in his first day Freedom of Information Act Memorandum.

The senior White House leadership directed agencies to update all guidance and training materials to ensure that all personnel involved in the FOIA process are made aware of the president's FOIA policy and to ensure that sufficient resources are committed to FOIA. Yesterday, Attorney General Holder celebrated many successes implementing President Obama's FOIA memorandum and his FOIA Guidelines, including an increase in releases of information by the Department of Justice itself, in a speech at the Department of Justice.

Granted, I have only worked on these issues for seven years, but from my review of FOIA's history, there has never been such a level of interest at the highest levels of the Executive Branch. To me this feels like the start of some sustained sunshine. 

[image via lwv.org]

Duquesne University law school professor and interim dean Ken Gormley, who participated in a fall ACS panel discussion focusing on Louis Brandeis' influence on privacy rights, will be in Bethesda, Md., this week to discuss his book, The Death of American Virtue: Clinton vs. Starr. 

The New York Times' Janet Maslin writes of the book, "But by and large Mr. Gormley has packed his narrative with intense, overdue and definitive testimony about the still-surprising investigation of Mr. Clinton's activities spearheaded by Kenneth W. Starr." The Times' Sunday Book Review also featured Gormley's book. 

Visit the Barnes & Noble in Bethesda Thursday, March 18 at 7 p.m. to hear Gormley talk about his work. For more information about the book event visit Barnes & Noble's Web site here.

Video of the panel discussion, "Louis Brandeis and the Development of the Right to Privacy," which Gormley participated, is available here. Also watch video or download a podcast of an ACSblog interview with Gormley. 

Pushback continues over conservatives' attacks on Department of Justice attorneys who represented military detainees accused of terrorism before entering government service. The New York Times "Room for Debate Blog" includes comment from across the political spectrum supportive and critical of the attacks. In a post dubbed "Aiding the Enemy," National Review Legal Affairs Editor Andrew C. McCarthy took aim at lawyers who represented detainees accused of terrorism, writing, "Members of any other profession or institution would be indicted for coming to the enemy's aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans."

McCarthy's post triggered a sharp rebuke from George Washington University law school professor Orin Kerr, a former recipient of a prestigious Federalist Society award. On the conservative legal theory blog, The Volokh Conspiracy, Kerr blasted McCarthy's arguments as "ridiculous."

Taking on McCarthy's "basic argument that lawyers who represented detainees ‘aided the enemy in wartime,' and should normally be guilty of treason," Kerr wrote:

If that's true, isn't the federal judiciary, and aren't the Justices of the Supreme Court, also guilty of treason? In fact, aren't the judges the kingpins of this treasonous plot to "hurt the war effort"? After all, lawyers only make arguments to judges. It doesn't actually help detainees to make argument courts reject. It's up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they're only minor players: It's the judges, and especially the Justices, who are the real guilty parties, as they're the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be "indicted for coming to the enemy's aid during wartime"?

As noted by The New York Times, the controversy, which has been fueled by Sen. Charles Grassley's demands that Attorney General Eric Holder (above, left) release names and information of DOJ attorneys who have represented detained terrorism suspects, and Liz Cheney's group Keep American Safe, which produced an inflammatory YouTube video referring to the DOJ attorneys as the "Al Qaeda Seven," has revealed a split among conservatives. 

Richard A. Epstein, a University of Chicago law school professor and as The Times described him, "a revered figure among many members" of the Federalist Society, told the newspaper, "There's something truly bizarre about this. Liz Cheney is a former student of mine - I don't know what moves her on this thing."

Epstein and Kerr aren't the only conservatives questioning the tactics. As noted earlier this week, another prominent conservative, former Independent Counsel Kenneth Starr signed a letter calling the attacks on the DOJ attorneys "shameful." The Times also reported that Peter Keisler, former Acting Attorney General during the George W. Bush administration, also signed that letter. And as reported by Main Justice, Holder's predecessor, former Attorney General Michael Mukasey, in an op-ed for The Wall Street Journal slammed the attacks on the DOJ attorneys as "shoddy and dangerous."

See previous posts on the matter here and here. 

Judge Thomas Porteous became the fifteenth judge ever deterimined by the U.S. House of Representatives to have committed "high crimes and misdemeanors" -- the consitutional bar for impeachment. The House unanimously approved four articles of impeachment, today, against the New Orleans federal judge.

"The four proposed articles of impeachment accused Porteous of taking money, expensive meals and other gifts from lawyers and a bail bond company with business before him and making false statements in a personal bankruptcy filing," reports The Times-Picayune. "Though much of the 'improper conduct' occurred when he was a state judge, the [House] Judiciary Committee decided he had an obligation to disclose his actions during his nomination and confirmation process in 1994."

The articles of impeachment, recommended by the Judiciary Committee earlier this year, are now in the hands of the Senate, whose constitutional duty it is to conduct impeachment trials. After the trial, the Senate will then vote on whether to remove Porteous. Removal requires a two-thirds vote and would make Porteous only the ninth judge removed by the Senate.

Porteous continues to collect his $174,000 annual salary as a federal jurist, but is barred from hearing cases until September of this year. If the Senate does to remove him by then, and he does not resign, he may resume control of his docket. 

[Image via jmtimages [recharging...].]

Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

Yesterday, The Associated Press reported that Senate Republicans are employing the filibuster to slow or scuttle legislation "at a record-setting pace." The article went on to cite the number of times cloture votes have been called to see if the majority can hold 60 votes to overcome a filibuster. John Aravosis of Americablog, studied the numbers on the Senate Web site and concluded that the AP got the numbers "wrong regarding GOP filibusters." But he maintains that despite the mistake, "the Republicans are filibustering twice as often as Democrats have in any previous Congress - so they clearly are abusing the system."

Aravosis writes:

What the data clearly shows is that he GOP is filibustering at twice the rate of what the Democrats did before, including what they did under Bush. So Republicans can't claim that Democrats did it too - they didn't. Not like this.

Another interesting data point: IN the last ninety years, there have been 1,195 cloture motions filed, and a874 cloture votes, per the Senate site. The Republicans in the last three years that they've been in the minority, have caused 215 of the motions to be filed, and 157 of those cloture votes. That means in just the past three years, the Republicans have been responsible for 18% of all filibusters recorded in the past 90 years.

On March 9 at the National Press Club, ACS will host a panel discussion of experts on the filibuster's effect on judicial nominations. See here for more on the national filibuster event.

Also, Sen. Tom Harkin recently wrote in a guest post for ACSblog on his effort to reform
the filibuster.

[image via www.phocabulary.com]

Fifteen months ago, a sizable majority of voters sent Democrats to Washington to implement real change and reform. Largely because of the filibuster, their hopes for change have been frustrated. Instead of progress, the public sees nothing but gridlock.

In the 71 years since Hollywood filmed "Mr. Smith Goes to Washington," the aim of the filibuster has been turned completely upside down. Seven decades ago, Jimmy Stewart, "Senator Smith," was the little guy using the filibuster to battle the special interests. Today, it is the special interests that are using the filibuster to kill legislation that would benefit the little guy.

The filibuster, which was once a dramatic challenge to majority rule only used in extraordinary circumstances, is now used or threatened on virtually every measure and every nominee. For example, last December Republicans filibustered a motion to proceed to a bill to extend unemployment compensation. After delaying Senate business for a month, the bill passed 98-0. In other words, Republicans filibustered a bill they fully intended to support simply to stall business in the Senate.

Similarly, Senate Republicans filibustered a bill that funded key agriculture, conservation and nutrition programs. That bill passed 80-17. They filibustered the Credit Card Holders Bill of Rights, which passed 90-5. And they even filibustered the Fraud Enforcement and Recovery Act, which passed 92-4.

Americans are so frustrated by the parliamentary delays that in a recent poll, some 53 percent of Iowans and 50 percent of Americans said they think the filibuster should be abolished.

A supermajority of 60 votes should not be needed to enact virtually any piece of legislation. In fact, the Framers of the Constitution were very clear about circumstances where a supermajority is required. There are only five: Ratification of a treaty, override of a veto, votes of impeachment, passage of a Constitutional amendment, and the expulsion of a member.

James Madison specifically rejected the idea that more than a majority would be needed for decisions. Responding to anti-Federalist arguments that the Constitution should have required more than a majority, Madison argued that such rules would lead to minority rule, something inconsistent with fundamental republican principles. As he wrote in Federalist No. 58:

That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would no longer the majority that would rule; the power would be transferred to the minority.

Madison would be appalled by the current abuse of the filibuster to impose minority rule.

Proponents of the filibuster regularly quote the story of George Washington's description of the Senate to Thomas Jefferson. Jefferson had returned from France and was breakfasting with Washington. Jefferson asked Washington why he agreed to have a Senate. Washington asked "Why did you just now pour that coffee into your saucer before drinking it?" "To cool it," said Jefferson; "my throat is not made of brass." "Even so," said Washington, "we pour our legislation into the Senatorial saucer to cool it."

As one author recently noted, however, the increasing use of the filibuster has converted the Senate from the "saucer" George Washington intended, into a "deep freeze."

Last Thursday, I introduced legislation to amend the Standing Rules of the Senate to permit a decreasing majority of Senators to invoke cloture on a given matter. On the first cloture vote, 60 votes would be needed to end debate. If the motion does not get 60 votes, a Senator can file another cloture motion and two days later have another vote; that vote would require 57 votes to end debate. If cloture is not obtained, a Senator can file another cloture motion and wait two more days; in that vote, 54 votes would be required to end debate. If cloture is still not obtained, a Senator could file one more cloture motion, wait 2 more days, and - at that point - just 51 votes would be needed to move to the merits of the bill.

Let me be clear, this proposal has absolutely nothing to do with limiting minority rights, but ensuring proper deliberation without grinding the Senate to a halt, as too regularly happens today.

It's time to restore the best traditions of the United States Senate, a legislative body committed to debate and deliberation, but also one guided by our Founders' bedrock democratic principles of majority rule.

[image via The National Academy of Sciences]

Senate Republicans should cease holding up President Obama's "well qualified" nominee to head the Office of Legal Counsel (OLC), top Senate Judiciary Committee members maintain in a column for The National Law Journal.

Sens. Patrick Leahy, chairman of the Senate Judiciary Committee, and Sheldon Whitehouse, chairman of the Judiciary Subcommittee on Administrative Oversight and the Courts, write that months "of obstruction by Senate Republicans" have stymied a vote on Dawn Johnsen's nomination to lead the OLC, noting that Obama nominated her a year ago.

Leahy and Sheldon write:

Johnsen has previously served for five years in OLC. She defended legitimate presidential powers. She produced opinions that conformed to the law, even if they did not advance the president's political interests. She has a proven record of setting aside her personal views to render independent legal opinions rooted in the Constitution and the law. Johnsen's former colleagues have called her the conscience of the office. Walter Dellinger, her former boss at OLC, has said that she ‘will be the best head of the OLC in the history of the office.'

Main Justice notes that after Obama re-nominated Johnsen, an Indiana University law school professor and a former member of the ACS Board of Directors, in January, the Senate committee has continued to delay a vote on the nomination. "The panel is expected to consider her nomination next week," according to Main Justice. 

In an article for The American Prospect, Attorney General Eric Holder Jr., asserting his Department's independence from political elements of the administration, tells Dayo Olopade, "I'm not the secretary of justice. I'm the attorney general of the United States." The article is one of three recent stories exploring ramifications of some decisions made during Holder's tenure as Attorney General.

The New York Times reported yesterday that Holder, a former member of the ACS Board of Directors, "has switched from resisting what he had considered encroachment by White House officials to seeking their guidance." According to The Times a catalyst was the Justice Department's decision to prosecute Khalid Sheikh Mohammed, who has said he plotted the Sept. 11 terrorist strikes, and four co-conspirators, in federal court instead of a military tribunal. Indeed, Holder told The Times that political attacks on that decision were "starting to constrain my ability to function as attorney general."

In an article for The New Yorker, Jane Mayer explores tensions between some in the White House and the Justice Department, especially over the decision on Mohammed. Explaining some of his reasoning, Holder said that the administration should not rely on the controversial interrogation techniques used by the Bush administration to bring justice to the alleged Sept. 11 conspirators. "We are not going to use the products of interrogation techniques that this President has banned," Holder said.

Olopade's article for The Prospect focuses more on Holder's work to build moral at the sprawling Justice Department after years of scandal prompted, in part, by a drastic reduction in attorneys in the Civil Rights Division and politicization of hiring throughout the Department.

Olopade maintains:

Indeed, his tenure promises to resolve many long-running debates on civil-rights provisions, environmental regulations, and criminal justice and drug policy, as well as the delicate balance between American security and its basic freedoms and moral principles. Taking some cues from the broad themes of the Obama campaign - transparency, people power, accountability, and equity for all Americans - Holder has directed the department to set up interagency task forces on interrogation and detention practices, shepherded new protections against hate crimes through Congress, spoken out on ‘the crisis in indigent defense,' decriminalized medical marijuana use, demanded new protocols for hiring U.S. attorneys, and declared that the agency's Civil Rights Division is once again ‘open for business.'

Caroline Fredrickson, executive director of ACS, told The Prospect, "They're reviewing everything de novo. There is clearly an effort to be much more inclusive in terms of hearing from different parts of the advocacy community and trying to understand the implications of policy for civil rights, for human rights, and for international obligations."

Spain Accepts Five Detainees: Spain announces the largest commitment among European countries.

Intelligence, Judiciary Committee Chairs Endorse Federal Trials: Senators Feinstein and Leahy pen a letter defending domestic terror trials.

Another Senator Supports Closing Gauntanamo with Caveats: Senator Graham demands military tribunals and indefinite detention.

International Law Expert Assesses Politics: Professor Deborah Pearlstein parses the political considerations seemingly driving Guantanamo decisions.

D.C. Circuit Hears Argument Against Releasing Detainee: The Justice Department appealed the district court's order to release Mohammed al-Adahi.

SCOTUS Considers Dismissing Kiyemba: With countries willing to accept all seven Uighurs at Guantanamo, the Supreme Court ordered briefing on whether to dismiss their case.

[Image via christophe dune.]