A withdrawal from sunlight? [Updated 4/14]

[UPDATE: On April 12, The Hill reported that the new budget agreement between President Obama and congressional leaders sets a funding level of $8 million for FY2011. A GovExec.com/National Journal article also noted a Sunlight Foundation reaction: “Little is known yet about why lawmakers cut so deeply into the transparency budget because ‘much of the budget negotiation process was almost entirely done in secret’.” –4/14/11]

Despite the Obama Administration’s repeated, fervent statements of support for transparency and technological innovation vis-a-vis government data, Federal News Radio reported on March 31 that the Office of Management and Budget plans to shutter seven e-government sites for lack of funding within two months – and that two more data-aggregation sites may not survive the summer.  (The House one-week budget extension would keep those sites open, but at this writing neither the Senate nor President Obama have agreed to this approach.)

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Advocates, officials discuss sunshine measures

Here’s a brief summary of testimony by witnesses at a hearing of the Senate Judiciary Committee this morning on the Freedom of Information Act.  Our appreciation to Chairman Patrick Leahy for holding the hearing (and adjusting the schedule to avoid conflicting with “FOI Day” at the Freedom Forum).

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Some context for some surveillance

When news broke recently that federal officials were pushing for new regulations to facilitate online eavesdropping (“U.S. Tries to Make It Easier to Wiretap the Internet”, New York Times, September 27, 2010), it seemed like there were two ways to interpret the situation:

Did the proposed powers represent a significant change from the status quo?

The administration’s proposal… would require reconfiguring of the Internet to provide easier access to online communications. —ACLU

Or did the proposed powers merely enable law-enforcement officials to continue doing what they had been doing?

We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security. —FBI general counsel Valerie E. Caproni

We couldn’t help thinking this sounded familiar.

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ICE rethinks an immigration disclosure; hoping for a trend

In light of President Obama’s first-full-day-in-office proclamation about transparency and FOIA, and the subsequent FOIA memorandum from Attorney General Eric Holder, we have been both hopeful and cautious when it comes to evaluating the Administration’s progress. Evaluating progress means looking at changes in numbers, and changes in experiences. One of those experiences involving a small newspaper and a story about immigration-related arrests may show the trends are encouraging.

Four years ago, Immigration and Customs Enforcement (ICE) arrested twenty-six people at a Bellingham, WA business, on suspicion of illegal immigration. A local newspaper, the Bellingham Herald, promptly filed a FOIA request for the names of the people arrested, only to have the request languish for over three years. Finally, in July 2010, the Department of Homeland Security (DHS) notified the paper that its FOIA request “was being finally and officially denied.”

Upon questioning, a department spokeswoman explained that the request had been processed under the rules of the previous administration – but she volunteered that there was other information which the office could provide. Department officials eventually “provided the nationalities, ages, genders and immigration status of those who were arrested.”

All is not sunshine, however; the department did continue to withhold the names of the arrestees, citing privacy laws – but in light of our previous coverage of DHS (and specifically ICE) stories that used FOIA, it is nice to see the agency take the initiative to respond to FOIA requests with the new rules and principles at heart.

One should be careful when trying to infer larger trends, or judge policies, based on individual events. But in this case, we hope this case is reflecting a rule that many agencies are rethinking their disclosure decisions.

More images of wrongdoing

The military appears ready to recycle arguments from last year, that photographic evidence of wartime abuses by American soldiers poses a threat to national security, the military, or both.

An Army commander is imposing strict limits on photographs in connection with the deaths of three Afghan civilians earlier this year. Descriptions of the photographs and some of the military’s rationales for secrecy in this case are reminiscent of previous photographs and justifications:

The pictures in question show “three dead Afghans with three different Soldiers posing, holding up the decedent’s head. (Each photo was one Afghan, one Soldier),” according to an e-mail by Benjamin Grimes, senior defense counsel at Base Lewis-McChord. Others [photographs described in a memo by Grimes] showed what appeared to be severed fingers and a bone.

(from Salon.com, 9/30/10)

A top Army official has ordered that images of dead or wounded “casualties or detainees” may not be made public during hearings involving an American soldier accused of murdering three Afghan civilians during a deployment to Afghanistan this year.

But the images would be accessible to defense and prosecution teams and could potentially be used as evidence in the case, the Army official, Col. Barry F. Huggins, said in a memorandum.

The decision reflects concern among the Army’s senior leadership that such evidence could anger Afghan civilians at a time when the United States is trying to win support for a counterinsurgency campaign against the Taliban.

“I have determined that the risk of potential prejudice to the substantive rights of the accused, as well as negative impact on the reputation of the armed forces, associated with the potential public dissemination of these images outweighs minimal hardship upon the accused as a result of this order,” wrote Colonel Huggins.

(from the New York Times, 9/24/10)

With the Obama Administration’s support, Congress has already let the Secretary of Defense withhold photographs showing how U.S. forces handled (and in some cases abused) detainees. That ban only covered photographs taken between September 11, 2001 and January 22, 2009; these photographs were taken in 2010.

Will the Administration be tempted to extend the exemption? There’s only one way to find out: Salon.com has filed a FOIA request for the photos.

The fact that this has come up so quickly after the detainee photo controversy shows these fears will come up repeatedly over information held by government, and the justification for the first photos ban was too broad and vague to ensure the U.S. government is kept accountable for the actions of its soldiers.

The McChrystal Fall-out: Biggest victim may be public

As reporters use Twitter to report that President Obama is accepting the resignation of General Stanley McChrystal, the biggest loser in the aftermath of the general’s poor judgment may be the American public.  Yahoo! News reporter Michael Calderone writes that the military is locking down troops from talking with reporters, as NBC’s Richard Engel says notes.

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