Obama’s Transparency Problem
The new administration’s decision to adhere to state secrets and other policies is a misuse of power.
By Ned Resnikoff
March 3, 2009
President Bush and President-elect Obama walk along the West Wing Colonnade prior to their meeting in the Oval Office. (AP Photo/Charles Dharapak)President Obama has proved he’s no shining beacon of transparency. First he ignored his “sunlight before signing” pledge. Then the Obama administration moved to block efforts to recover missing Bush-era White House emails. The final straw was when the administration stuck to the Bush White House’s position in another court case and waffled on state secrets. The new justice department not only adhered to the previous administration’s dubious strategy, but did so even when Obama had sharply criticized that strategy during the campaign.
Despite his sharp denunciation of the Bush administration’s secrecy and abuse of power, it appears that President Obama has every intention of appropriating its tactics. His reversal on state secrets is a particularly disturbing example of this, and not just because it directly contradicts his campaign rhetoric. The state secrets privilege has long been a legal tool the executive branch could wield to block specific pieces of evidence from appearing in court if it believed said evidence posed a national security concern. But the Bush administration took this practice to an absurd level when it decided it should be able to get entire cases thrown out simply by asserting the privilege. Now, in Mohammed et al v Jeppesen, Obama’s legal team is using the same tactic to try and silence a lawsuit mounted by extraordinary rendition victims against the Boeing subsidiary which aided in their abduction.
Binyam Mohammed was abducted, transported to Guantanamo, and subjected to excruciating torture, up to and including genital mutilation. What makes this behavior so grievous is that in trying to get Mohammed et al v. Jeppesen dismissed, the White House is deliberately covering for the human rights abuses of the previous administration. It is unconscionable of President Obama’s administration to obstruct the justice that Mohammed seeks.
Civil liberties groups responded to these legally suspect antics with sharp criticism. And, as Glenn Greenwald points out, the administration simply refused to mount a good faith defense of its methods. Instead, members of the administration selected sympathetic journalist Marc Ambinder; who uncritically echoed the anonymous spin. It would be frightening enough if the Obama administration only imitated the Bush administration in its legal strategy on the Mohammed case; but it also imitated the Bush administration’s strategy for dealing with the press.
The Mohammed case isn’t the only instance in which the White House seems to be deliberately covering for the Bush administration. It is likely that one of the reasons why the Obama administration is blocking recovery of the missing White House emails is because they could potentially be used as evidence of Bush administration lawbreaking. And Obama’s latest (unsuccessful, thankfully) blow to transparency was an attempt to block legal inquiries into the Bush administration’s illegal wiretapping program.
There are two possible explanations for President Obama’s ongoing defense of his predecessor’s lawlessness, and both are probably at least partially true. One is that, once in office, public officials often are reluctant to voluntarily limit their own power. As White House counsel Gregory Craig told The New York Times, “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.” Obama is thus motivated to hold onto the powers that Bush gained through corroding constitutional separation of powers.
The other explanation is that by blocking evidence of the Bush administration’s wrongdoing, President Obama may be trying to save himself from mounting pressure to launch a full-on investigation. On some level, that is understandable. Obama has a lot on his plate right now, and neoconservative politicians and media figures would undoubtedly warp any kind of serious inquiry into a partisan circus. Not only that, but Obama may fear that such an investigation, if perceived as a partisan attack, could set a precedent that would result in investigations into his own administration.
But the precedent set by consciously blocking an investigation into abuse of power is much more disturbing, because it means adopting the Bush administration’s commitment to the neo-monarchist fallacy of the unitary executive; the belief that the White House has virtually unlimited power, and that it is effectively above the law. If the Obama administration does that, rather than aggressively rolling back the abuses of the Bush White House, then that means that much of the damage Bush inflicted upon the Constitution is perhaps permanent.
Ultimately, Obama’s strategy might be to just sit on his hands and remain aloof as Congress investigates his predecessor’s administration. That could be why, when asked by Huffington Post reporter Sam Stein for his thoughts about Senator Patrick Leahy’s proposed Truth Commission, Obama claimed that he had not seen the proposal and responded with some mealy-mouthed platitudes about looking forward. If he can stay above the fray, the reasoning might go, then perhaps there can be an investigation without it detracting from the current president’s own ambitious agenda.
The only way to restore the proper balance of power is for activists and Congress to drag the issue out front and center, and make excessive secrecy seem like far more of a political liability than an asset. Unfortunately, the conservative opposition to Obama has no credibility on this issue, having whole-heartedly endorsed all the abuses of the Bush years. Obama’s abuse of the state secrets privilege and his excessive secrecy in general, will go relatively unchallenged. And if this happens, the failure to defend civil liberties will have assisted President George W. Bush in marring the rule of law in this country.
Ned Resnikoff is a student at NYU and a regular contributor to Campus Progress.
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