Fwd: [bangla-vision] Our Untransparent President - NYTimes.com

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From: LGR <taliba.quran@gmail.com>
Date: Tue, Jun 28, 2011 at 7:16 AM
Subject: [bangla-vision] Our Untransparent President - NYTimes.com
To: LGR <dazeylin@gmail.com>

 

http://www.nytimes.com/2011/06/27/opinion/27stone.html?_r=3&pagewanted=print

Our Untransparent President

By GEOFFREY R. STONE

Chicago

AS a longtime supporter and colleague of Barack Obama at the University of Chicago, as well as an informal adviser to his 2008 campaign, I had high hopes that he would restore the balance between government secrecy and government transparency that had been lost under George W. Bush, and that he would follow through on his promise, as a candidate, to promote openness and public accountability in government policy making.

It has not quite worked out that way. While Mr. Obama has taken certain steps, notably early in his administration, to scale back some of the Bush-era excesses, in other respects he has shown a disappointing willingness to continue in his predecessor's footsteps.

In the years after 9/11, the Bush administration embraced a series of policies, including torture, surveillance of private communications, and restrictions on the writ of habeas corpus, that undermined the fundamental American values of individual dignity, personal privacy and due process of law. Its most dangerous policy, though, was its attempt to hide its decisions from the American public.

In an effort to evade the constraints of separation of powers, judicial review, checks and balances and democratic accountability, the Bush administration systematically hid its actions from public view. It promulgated its policies in secret, denied information to Congress, abused the process for classifying information, narrowly interpreted the Freedom of Information Act, punished government whistle-blowers, jailed journalists for refusing to disclose confidential sources, threatened to prosecute the press for revealing secret programs, and broadly invoked the state secrets doctrine to prevent both Congress and the courts from evaluating the lawfulness of its programs.

In doing so the Bush administration undermined the central premise of a self-governing society: it is the citizens who must evaluate the judgments, policies, and programs of their representatives. As James Madison observed, "A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both."

At least four obvious areas of concern regarding transparency confronted President Obama when he entered the White House.

The first involves the problem of classification, and it is, to be fair, a bright spot on the president's record. Soon after taking office, Mr. Obama repealed a directive, issued by Mr. Bush's attorney general, John D. Ashcroft, in October 2001, authorizing the government to classify information whenever its disclosure might potentially harm national security. This standard ignored the competing national interest in preserving an open and responsible government. Prior administrations had employed a more open approach, and President Obama's repeal was a significant step in the right direction.

But his record on whistle-blower protection, another key area of concern, has been less laudable. In early 2009 members of Congress enthusiastically introduced the Whistle-Blower Protection Enhancement Act, which promised substantial protection to certain classes of government employees who report matters of legitimate public concern to lawmakers or the media. Although as a candidate Mr. Obama had expressed support for such a law, his administration cooled to the idea and let it die in the Senate in late 2010 (it was reintroduced in April 2011). Sadly, as a number of high-profile criminal cases against whistle-blowers show, the Obama administration has followed its predecessor in aggressively cracking down on unauthorized leaks.

President Obama has also followed Mr. Bush in zealously applying the state secrets doctrine, a common-law principle intended to enable the government to protect national security information from disclosure in litigation. Although legitimate in theory, the doctrine had been invoked in an unprecedented manner by the Bush administration to block judicial review of a broad range of questionable practices.

The dawn of the Obama administration brought hope that Congress would enact the proposed State Secrets Protection Act of 2009, which would have limited the scope of the doctrine. Indeed, shortly after President Obama took office, Attorney General Eric H. Holder Jr. suggested that the doctrine should be invoked "only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests."

Since then, however, the Obama administration has aggressively asserted the privilege in litigation involving such issues as the C.I.A.'s use of extraordinary rendition and the National Security Agency's practice of wiretapping American citizens.

Finally, events during the Bush administration made clear that it was long past time for Congress to create a federal journalist-source privilege. Forty-nine states and the District of Columbia have recognized such a privilege, and members of Congress proposed the Free Flow of Information Act to recognize a similar privilege as a matter of federal law. If enacted, the law would enable journalists to protect the confidentiality of their sources, unless the government could prove that disclosure of the information was necessary to prevent significant harm to national security.

In what seems to be a recurring theme, Senator Obama supported the Free Flow of Information Act, but President Obama does not. In 2007, he was one of the sponsors of the original Senate bill, but in 2009 he objected to the scope of the privilege envisioned by the bill and requested that the Senate revise the bill to require judges to defer to executive branch judgments. Although the bill passed in the House in the last Congressional session, it stalled in the Senate and now has to be reintroduced.

The record of the Obama administration on this fundamental issue of American democracy has surely fallen short of expectations. This is a lesson in "trust us." Those in power are always certain that they themselves will act reasonably, and they resist limits on their own discretion. The problem is, "trust us" is no way to run a self-governing society.

Geoffrey R. Stone is a professor of law at the University of Chicago and chairman of the board of the American Constitution Society.

 

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