112th Congress Goes Out with a Bang — and a Boo: January 8, 2013 Newsletter

In This Issue:
News from Coalition Partners & Others
I. 112th Congress Goes Out with a Bang — and a Boo
Cheney-Bush “Unitary Executive” Redux?
III. Judge Denies Requests for OLC Memos on Drone Strikes
IV. Join OTG Staff on January 17 for CGS' "Transparency in the Obama Administration"

News from Coalition Partners & Others

TRAC Launches The FOIA Project

The Transactional Records Clearinghouse is harnessing the power of the internet to paint a clearer picture of FOIA lawsuits. The FOIA Project will organize, link, and index documents related to requests, keeping track of withholding decisions, allowing users to search and explore FOIA cases. The most egregious of the withholding decisions will end up in the Project’s “FOIA Hall of Shame.”

A New Name for OMB Watch

OMB Watch is now the Center for Effective Government, with a new logo and website that went live on Monday, January 7th. The name change is intended to better reflect the organization's mission: working for open government, accountability, and civic participation.

Sunlight Foundation Makes Recommendations to Open Up the of the 113th Congress

The Sunlight Foundation has published concrete recommendations for the 113th Senate and House to make big strides in openness. Sunlight’s Daniel Schuman writes that both chambers need to “adopt a chamber-wide presumption in favor of public access.” You can read the Senate recommendations here, and the House of Representatives here.

I. 112th Congress Goes Out with a Bang — and a Boo

On its way out the door, the 112th Congress took action on a number of pending controversial secrecy bills — making last minute improvements to annual authorization bills in order to protect the public's ability to get information, expanding contractor whistleblower rights, but also opting to maintain the secrecy surrounding the government's wireless wiretapping program.

In a major win for the open government community, and for informed democracy, the Fiscal Year (FY) 2013 Intelligence Authorization bill sent to the President's desk for signature into law did not include several dangerous provisions nominally intended to prevent leaks of sensitive information. As we have written previously, the so-called anti-leaks provisions would have made the unauthorized disclosure of any classified information a punishable offense, regardless of its public policy significance, and threatened free speech rights and due process of current and former federal employees. The package was hastily attached to the Intelligence authorization bill in the wake of several high-profile leaks. Legislation to address leaks of classified information necessarily will touch on complex questions that require careful consideration. If the 113th Congress takes up the issue (which it almost certainly will), we encourage it to begin the process with hearings and maximal public input.

The 112th Congress also added to the list of bills it passed to help people who blow the whistle on waste, fraud, abuse and illegality in the federal government. Fresh off of the success of final passage of the Whistleblower Protection Enhancement Act, Congress included a provision in the final version of the National Defense Authorization Act that expanded contractor whistleblower protections.

Unfortunately not all of the final acts of the 112th Congress were as warmly welcomed: efforts to inject oversight and accountability into the warrantless wiretapping program fell short, and the 112th Congress passed a five-year extension of the program.

The 113th Congress was sworn in on Thursday, January 3rd. We've already suggested 5 Issues it should address to make the federal government more open and accountable.

II. Cheney-Bush “Unitary Executive” Redux?

In a signing statement accompanying the National Defense Authorization Act, President Obama wrote that the provision "could be interpreted in a manner that would interfere with my authority to manage and direct executive branch officials." Troublingly, the statement said further that the President "will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees’ communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential." This statement is contrary to the "unprecedented levels of openness in Government" President Obama committed to creating on his first day in office. (Read more about the statement here.)

III. Judge Denies Requests for OLC Memos on Drone Strikes

Even as U.S. District Judge Colleen McMahon ruled that the government was correct to deny requests from two New York Times and the American Civil Liberties Union for access to documents related to the government's "targeted killing" drone program, she conceded that the pronouncement had an "Alice-in-Wonderland nature." Indeed, it strikes us as supremely un-democratic and anti-transparency that the government can publicly proclaim it has the legal authority to pursue the "targeted killing" program, but continually refuses to allow the public access to the actual legal analysis from the Department of Justice's Office of Legal Counsel (OLC).

According to Patrice McDermott, Executive Director of OpenTheGovernment.org, "If President Obama wants to fulfill his promise of creating "unprecedented levels of openness in Government," his national security policies must be brought in line with his domestic efforts to make the government more open and accountable. His decision to declassify the controversial Bush-era OLC memos on torture was the right one. And declassifying the "targeted-killing" memos is just as central to preserving the rule of law. The public needs to know the government’s legal justifications in order to have an informed and public debate."

The need for not only OLC memos, but for all authoritative interpretations of law (e.g., FISA Court opinions, administrative rulings) to be available to the public (with minimal redactions to safeguard classified information) was noted in the 11th of our recent 12 Open Government New Year's Resolutions for the Obama Administration.

IV. Join OTG Staff on January 17 for CGS' "Transparency in the Obama Administration"

We hope to see you on Thursday, January 17th at the Washington College of Law for the Collaboration on Government Secrecy's (CGS) event, " Transparency in the Obama Administration: a Fourth-Year Assessment."

Our Executive Director Patrice McDermott will join the panel discussing agencies' failure to update their Freedom of Information Act (FOIA) regulations to reflect changes in Administration policy, or even changes in law. As you may remember, our friends at the National Security Archive recently released a study that found more than 60 percent of government agencies have failed to update their FOIA regulations since US Attorney General Eric Holder issued is 2009 FOIA memorandum, and that more than half of the agencies had not updated their regulations since the passage of the OPEN Government Act of 2007.

Amy Bennett, our Assistant Director, will join the panel discussing the launch of FOIAOnline, a portal managed by the Environmental Protection Agency (EPA) that makes it easy for users to make and track requests at participating agencies. She will be sharing some of the more interesting and baffling results of a project OpenTheGovernment.org is currently running to compare the experience of a FOIA requester using FOIAOnline vs. other agency systems. Interested individuals can keep up with the project by visiting Managing FOIA, a blog that is updated each time we get an update on one of our requests.

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