A Presumption of Disclosure
Obama revives the Freedom of Information Act.
But much of this delay is by design. Some agencies have been conscientious in filling their statutory duties, but, especially since the Ashcroft memo, many others have simply ignored the law, leaving their FOIA offices vacant and no longer training officials in how to review FOIA requests.
In 2006, the National Security Archive, a private research organization headquartered at George Washington University, sued the U.S. Air Force for failing to respond to several FOIA requests. A federal judge ruled that the Air Force had engaged in a "pattern and practice" of neglect on the issue. Since then, the Air Force has cleaned up its act, retrained personnel, and resumed serious reviewing. Other agencies have stepped up their training, too—but in the opposite direction, ordering their FOIA officers to find legal rationales for withholding everything (the natural bureaucratic tendency), knowing that the Ashcroft memo assures them of executive-branch backing at the highest level.
But that was before President Obama's memorandum.
The Obama memo doesn't lay down new law. But it does order his attorney general and his budget director to devise new guidelines and regulations, which will have the force of new law—guidelines based on a presumption of disclosure, the exact opposite of the Bush-Ashcroft guidance.
Again, a presumption is not a requirement; the statute's exemptions covering genuine national-security secrets will no doubt remain in place. But presumptions matter to bureaucrats; they lay down what is expected; they set the boundaries of safe behavior. Under Bush-Ashcroft, the presumption was: When in doubt, classify and lock the archives down. Bureaucrats are always in some doubt, so they slammed the vaults and hid the keys. Obama is saying: When in doubt, if there's no demonstrable harm, open the gates. (One line of his memo stresses that government should not keep information secret merely because of "speculative or abstract fears." [Italics added.])
In January 2008, an obscure federal entity called the Public Interest Declassification Board—a group of nine specialists, mainly academics and former officials, five appointed by the president, four by Congress—submitted a report to President George W. Bush, proposing more than a dozen ways to make the process more sensible: consolidating authority in the National Archives, creating centralized data banks, automatically declassifying almost everything that's more than 25 years old, and so forth.
Bush ignored it. Obama shouldn't. It spells out how to translate his principles into policies.
In the early 1980s, while researching a book about the history of American nuclear strategy, I filed a lot of FOIA requests with the Department of Defense. One day, I received a call from a major, saying he was my FOIA contact officer. He was phoning just to introduce himself and to assure me that he'd argue vigorously on my behalf, not only to declassify the documents I requested but also to waive the search fees on the grounds that release of the material was in the public interest. (Fee waivers were once common for journalists and authors. Now fees are charged to everyone, and up front, not so much to reimburse for searches as to set up a toll booth to dissuade most citizens from even trying to get information.)
I didn't get all the documents I'd requested, but I got most of them. The secrets they spilled were about weapons, war plans, and bureaucratic battles 20 to 30 years earlier, in the 1950s and '60s. Their declassification filled a lot of gaps in our knowledge of history, which arguably helped readers understand certain aspects of the present. But they revealed nothing that would have remotely assisted our enemies, then or now.
Fred Kaplan is Slate's "War Stories" columnist and author of the book, The Insurgents: David Petraeus and the Plot to Change the American Way of War. He can be reached at firstname.lastname@example.org. Follow him on Twitter.
Photograph of Barack Obama by Saul Loeb/AFP/Getty Images. Photograph of Obama signing on the Slate home page by Alex Wong/Getty Images.