Despite President Obama’s promise of more open government, the Justice Department is resisting pressure to release documents the Bush administration kept secret about domestic wiretapping, data collection on travelers and U.S. citizens, and interrogation of suspected terrorists.
In half a dozen lawsuits, Justice lawyers are defending Bush administration decisions to withhold records from the public. They have opposed formal motions or spurned out-of-court offers to merely delay these cases 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 Justice Department agreed to suspend a FOIA 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, which filed several lawsuits seeking the Bush administration’s legal justification 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 FOIA policy imposed by Bush’s first attorney general, John Ashcroft. The Bush Justice Department said it would use any legitimate legal argument to defend withholding records from the public. Obama pledged "an unprecedented level of openness in government" and ordered new FOIA 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 FOIA case seeking access to the FBI’s rules for using its Investigative Data Warehouse — a computer database containing 1 billion searchable documents about Americans and foreigners — Justice lawyers told a district court here Thursday, "It is not clear that the new guidelines, once issued, will be retrospective to FOIA requests that the agency already has finished processing."
They asked the court to rule instead that the FBI has done enough by reviewing 878 pages, withholding 76 and releasing some portions of 802.
The FBI withheld some material on the basis of discretionary FOIA exemptions and ones that require balancing privacy and public interests. 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 isn’t retroactivity, Sobel said. "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 FOIA."
Other lawsuits in which Justice’s civil division has expressed opposition to delays until the administration writes its FOIA guidelines and uses them to review Bush decisions:
_A case seeking documents about the Automated Targeting System used by Customs officers to screen all travelers leaving or entering the country.
_A case seeking records of lobbying by telecommunications companies to get legal immunity for cooperating in warrantless domestic wiretapping.
_A case seeking Justice’s legal opinions justifying that wiretapping. One of the plaintiff attorneys, Meredith Fuchs, of the National Security Archive, a private group that publishes formerly classified government documents, said, "I’m somewhat surprised they did not take the opportunity to look at these again, but maybe it’s because the administration doesn’t have all its top Justice appointees in office yet."
_Three cases seeking Justice legal opinions about detention and interrogation of terrorism detainees. Civil division attorney Caroline Wolverton wrote the ACLU’s Jaffer that Justice would proceed "consistent with the principles" in Obama’s FOIA order "and also with due regard for the legitimate confidentiality interests of the executive branch and the national security interests of the United States."
Jaffer called that "a non-response response."
So far, Justice has expressed willingness to review Bush decisions in two cases, only one because of FOIA changes.
Only in Sobel’s lawsuit for anti-counterfeiting treaty documents has Justice joined a plaintiff to obtain a court delay to give the administration time to write FOIA guidelines and use them to "review its determinations on the documents at issue."
But that case is unusual because Justice is represented by its Office of Information and Privacy, not by the civil division which handles all the other FOIA lawsuits. The information and privacy office provides governmentwide guidance on how to obey the FOIA. Attorneys in these FOIA cases worry that the information and privacy office doesn’t have the clout of the much larger civil division and may not control administration policy.
The civil division has sought a delay to review one case — involving three 2005 Justice legal memos on the definition of "cruel and unusual" interrogation tactics. But its request didn’t mention the new FOIA policy. Instead it said Obama’s Jan. 22 executive order on detention and interrogation might alter the government position.
Even if the new administration reviews Bush decisions, there’s no guarantee it will reach different decisions.
Last week, Attorney General Eric Holder announced a review of every court case in which the Bush administration invoked the state secrets privilege, a separate legal tool it used to have lawsuits thrown out rather than reveal secrets. The same day, however, civil division attorney Douglas Letter cited that privilege in asking an appeals court to uphold dismissal of a suit accusing a Boeing Co. subsidiary of illegally helping the CIA fly suspected terrorists to allied foreign nations that tortured them.
Letter said that Obama officials approved his argument.