Barack Obama's Impenetrable Transparency

On January 21, 2009, the day after assuming office, President Barack Obama promised his senior staff and cabinet members that “transparency and the rule of law” would be a fundamental feature of his presidency.

On September 4, 2009, the Obama White House upped the ante, proclaiming to the press: “Today, the President took another important step toward a more open and transparent government by announcing a historic new policy to voluntarily disclose White House visitor access records.” Obama added, “Americans have a right to know whose voices are being heard in the policymaking process.”

But on August 30, 2013, the Big Lie behind Obama’s transparency promise was further exposed when Obama’s unprecedented efforts to keep lists of White House visitors from being disclosed under the Freedom of Information Act (FOIA) was upheld by the DC Court of Appeals.

By way of background, in September 2009, the Obama administration made a big deal out of its new policy to release the visitor logs voluntarily. In reality, however, the White House insisted that it could release visitor information at its own discretion, and that the timing and specifics were not subject to disclosure (or court oversight) under FOIA. Despite White House misinformation, tens of thousands of visitor logs were–and still are–being withheld from disclosure by the Obama White House

A month later, in October 2009, I and several fellow Judicial Watch staff members met with top White House officials, led by Norm Eisen, then-Special Counsel to the President for Ethics and Government, to discuss our pursuit of the visitor logs.

During the meeting, which was one of the oddest of my 15 years at Judicial Watch, Eisen encouraged Judicial Watch to publicly praise the Obama administration’s commitment to transparency in exchange for the Obama White House saying nice things about us.  We were not intimidated, especially since the Obama gang still refused to abandon its legally dubious contention that the visitor logs are not subject to FOIA law. So we sued the Obama administration on December 7, 2009, and ultimately earned a landmark District Court decision affirming the rule of law. It was that very sound decision that was overturned by the activist August 30 appellate court ruling.

By any normal reading of the law, White House visitor logs fall under the purview of the Secret Service, and are, therefore, records subject to disclosure under FOIA. As former Chief Judge of the U.S. District Judge Royce C. Lamberth rightly ruled in a 2007 decision ordering the Bush administration to turn over visitors logs, “Because the Secret Service creates, uses, relies on, and stores visitor records, they are under its control.”  The appellate court decision has walled off those records from public disclosure, so that American citizens now have to rely on the good will of presidents to release them. And that is a grievous setback for government transparency and accountability.

As Politico’s White House correspondent Josh Gerstein wrote in his report on the decision, “The ruling is also a defeat for an array of major news organizations, the Reporters Committee for Freedom of the Press and CREW [the liberal group, Citizens for Responsibility and Ethics in Washington]. In amicus briefs, they asked the appeals court to uphold the lower court decision and find that the access records are subject to processing under FOIA.” He is right on all counts–the ruling is a defeat for the wide array of groups he mentioned. But, he left out the most important group of all: the American people, who must now sit outside the White House gate wondering who gets in to see the president.   

All of this, because the Appellate Court decided to take Barack Obama at his word as to what should be kept secret from the American people, even down to who conducts the public’s business in the “People’s House.” Though the DC Appeals Court tries to limit its decision to the “special circumstances” of the White House visitor logs, the Appellate Court suggests that the White House can avoid document disclosure by simply labeling–at any time–documents residing in other government agencies as “White House records.” This provides an obvious roadmap for any president seeking more secrecy and less transparency.

If the ruling is allowed to stand, it will be at least 12 years after Obama’s leaves office before we can access all of the logs. Add in the inevitable court proceedings that will be required to unlock the logs, and we may not learn who conferred with Barack Obama until the Chelsea Clinton presidency! And, yet, as Gerstein pointed out in his report, it goes even further: “The opinion underscores arguments that federal advisory committees may be able to conduct nearly all their work in private.” So, not only can the president now keep his liaisons secret, so, too, can all of the president’s men.

In truth, a president who does not want the American people, under law, to know who his visitors are is a president who does not want to be accountable. And a president who is not accountable is virtually uncontrollable.

Make no mistake about it: If the appellate court decision is allowed to stand, the Obama administration will have succeeded in turning the Freedom of Information Act on its head. Visitors to the Oval Office will come and go under an impenetrable cloak of secrecy. And Obama and his successors will be able to cut backroom deals with shadowy characters far removed from the essential element of public scrutiny.