Government Transparency

  • June 27, 2011

    The Obama administration’s disappointing record on government transparency is a lesson in the limits of the “trust us” approach to governing, writes ACS Board Chair Geoffrey R. Stone in an op-ed in The New York Times.

    Stone, a constitutional law professor at the University of Chicago who worked with President Obama at the university and acted as an informal adviser to Obama’s presidential campaign, laments that President Obama has not lived up to the promises of “Senator Obama” to “promote openness and public accountability in government policy making.”

    Stone points to the journalist-source privilege, whistleblower protection and the state secrets privilege as areas in which President Obama has shown a “disappointing willingness” to continue the Bush administration policy of hiding its decisions from the American public. He notes that one bright spot in Obama’s record was his repeal of a Bush administrative directive that allowed broad classification of government information.

    Nonetheless, he writes, “[t]he record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations.”

    He continues:

  • May 3, 2011
    Guest Post

    By Richard Zitrin, Lecturer in Law, University of California, Hastings College of the Law. This is the first in a series of posts about the proposed Sunshine in Litigation Act of 2011. Read response posts in a debate about the bill here.

    Simply put, the Sunshine in Litigation Act of 2011 (S. 623, “SILA”), to be marked up by the Senate Judiciary Committee on Thursday, will save lives – hundreds, indeed thousands, of lives.  It will prevent future accidents caused by car defects and tires that shred, “adverse incidents” from drugs and prostheses, children maimed by unsafe toys, and others molested by priests or soccer coaches.  And it will do this at no cost to our government or our taxpayers. 

    For years, plaintiffs’ lawyers and defendants and their counsel have been able to cooperate – some might say “collude” – to keep the facts about dangerous products, toxic conditions, molesters, and more, secret from public view.  They’ve done this while engaging in public litigation by agreeing to settlements that keep the facts of the case secret; stipulating to protective orders too often approved with little review by busy judges; and returning information plaintiffs learn in the “discovery” process to defendants in exchange for what amounts to hush money.

    SILA is a bi-partisan bill that will simply and effectively stop these practices in all federal cases, by requiring that information exchanged in the discovery process may not be “secretized” when the public health and safety is endangered.  It’s simple: no secret settlement agreements, no stipulations for overbroad protective orders, no trading information for money, whenever the litigants allow their own private economic advantage to trump public safety. 

  • December 1, 2010

    The release by WikiLeaks of some 250,000 previously confidential diplomatic cables has raised new questions about First Amendment protection for WikiLeaks, and for those media outlets that publish information they obtain from WikiLeaks, or other similar sources.

    The Department of Justice is investigating WikiLeaks' publication of sensitive documents, and federal officials told The Washington Post they are considering criminal charges under the Espionage Act for WikiLeaks founder Julian Assange.

    U.S. media outlets took different approaches in deciding whether to publish the WikiLeaks information. The New York Times provided an extensive explanation of its decision to publish, after obtaining the documents from an anonymous source. But The Wall Street Journal and CNN declined to enter into a confidentiality agreement with WikiLeaks in order to obtain some of the documents, WSJ reports.

    During a recent ACS event, experts provided some helpful First Amendment perspective on the WikiLeaks phenomenon, including how First Amendment protection of sensitive information has developed and what place shield laws that protect anonymous sources have in this discussion.

    Moderator Adam Liptak, Supreme Court correspondent for The New York Times, and a former lawyer for the newspaper, framed the discussion in saying:

    The great democratization of information on the Internet, notably in the form of WikiLeaks, means there is no responsible party to negotiate with on the other side. For better or worse, we [The New York Times] held back on the warrantless wiretapping story, in part because we consulted with, and were persuaded by, things the government was telling us. We may have made the wrong decision, but it wasn't for want of trying to get it right, trying to strike the balance correctly. That doesn't seem to be the case in many quarters on the Internet today. So, we live in a new world.

    ACS has compiled some of the most relevant comments in a WikiLeaks highlights video below. Watch the full discussion on the interplay between national security and government transparency here, including a keynote address by White House Open Government Initiative Director and U.S. Deputy Chief Technology Officer Beth Noveck.

  • November 24, 2010

    Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, discussed the promises and shortfalls of the current administration's Open Government Initiative with ACSblog following an ACS event on the interplay between national security, government transparency and the First Amendment.

    Sloan highlights persistent obstacles to government transparency, ranging from limited resources for FOIA officers to political resistance. Responding particularly to keynote speaker Beth Noveck's comments (available here), she stresses the importance of strengthening the FOIA process:

    "The administration recognizes there are problems with the FOIA and it's up to them to fix it. We don't go around the one real piece of legislation that authorizes citizens to get information from the government. This is the way citizens should go about getting information and the administration needs to make sure that mechanism works."


  • November 23, 2010

    The nature of our First Amendment vision is expanding, as new technologies enable people to interact with public information and become "active collaborators, "rather than just "passive listeners," White House Open Government Initiative Director Beth Noveck said during an ACS event addressing government transparency and national security.

    Noveck, who is also United States Deputy Chief Technology Officer, said the federal government is in the process of adopting a culture of transparency, one which emphasizes collaboration instead of the "us versus them" mentality of the traditional mechanisms of obtaining information, such as the Freedom of Information Act.

    But four panelists who spoke following Noveck's address pointed out that there are many contexts in which an us versus them dynamic continues, and perhaps is necessary, such as when watchdogs and journalists seek to obtain information that disparages the government, and in the national security context, when the government keeps information secret in the name of the country's protection.

    "It's a lovely thing whatever the government decides to tell us as a matter of discretion and grace, but sometimes the government does want to keep secrets," said New York Times Supreme Court correspondent Adam Liptak, who moderated the panel.

    "From my perspective, the discussion is not so much secrecy versus national security, but it is secrecy versus government wrongdoing that is in the context of national security," said Vincent Warren, executive director of the Center for Constitutional Rights.

    For example, there might have been a justification at one point for keeping interrogation techniques secret, Warren explained.

    "However, once it became clear that interrogation techniques amounted to war crimes, then the nature of the secrets shifted from interrogation and operational details to covering up of international war crimes. And I certainly wouldn't take the position that that's something that should remain secret," Warren said.

    Warren, and his fellow panelists, Prof. Jerome A. Barron of George Washington University and Citizens for Responsibility and Ethics in Washington Executive Director Melanie Sloan, lamented that the courts do not take a more active role in making determinations about when the public has a right to national security information.

    Barron pointed to the recent Supreme Court decision Holder v. Humanitarian Law Project as an example of the court's excessive deference to the government on First Amendment issues, contrasting the court's approach with its active role in New York Times Co. v. United States (the Pentagon Papers case).

    "Although the First Amendment should have been central to the case, it was really treated as just a possible distant remedy for government abuse of first amendment rights," Barron said. "The case suggests that the present court takes a very different and much too limited a view of the judicial role."

    Watch the full discussion below.

    Read a guest blog post adapted from Melanie Sloan's comments during the panel here.