One of the most disappointing attributes of the Obama administration has been its proclivity for secrecy. The president who committed himself to "an unprecedented level of openness in government" has followed the example of his predecessor by invoking the "state secrets" privilege to derail litigation about government misdeeds in the war on terror. He has refused to release the administration's secret interpretation of the Patriot Act, which two senators have described as alarming. He has blocked the dissemination of photographs documenting the abuse of prisoners by U.S. service members. And now his Justice Department has proposed to allow government agencies to lie about the existence of documents being sought under the Freedom of Information Act, or FOIA.
At present, if the government doesn't want to admit the existence of a document it believes to be exempt from FOIA, it may advise the person making the request that it can neither confirm nor deny the document's existence. Under the proposed regulation, an agency that withholds a document "will respond to the request as if the excluded records did not exist."
This policy is outrageous. It provides a license for the government to lie to its own people and makes a mockery of FOIA. It also would mislead citizens who might file an appeal if they knew there was a possibility that the document they sought was in the possession of a government agency. Such an appeal would allow a court to determine whether the requested document was covered by an exemption in FOIA.
Even without the new rule, federal law enforcement agents have denied the existence of important documents. In a lawsuit involving surveillance of Muslim organizations in Southern California, the FBI was reprimanded by a federal judge. "The Government cannot, under any circumstance, affirmatively mislead the court," wrote Judge Cormac J. Carney. The FBI justified its misrepresentation by citing national security.
An appeal to national security underlies many of the Obama administration's decisions to withhold information of public interest. But, as with past presidents, a stronger motive seems to be to protect the government from embarrassment. Take the case of a lawsuit against an aircraft services company accused of helping the George W. Bush administration transport suspected terrorists to other countries for interrogation. In invoking the state secrets privilege, the administration told the court that proceeding with the case would be "play[ing] with fire." Yet the details of the rendition program had long been public.
FOIA doesn't provide a blanket right to public access to government documents. It's reasonable to have exceptions for certain classified national security or foreign policy documents if their release would damage American interests. The government should be free to withhold those documents, subject to review by the courts, but it would be unacceptable — and deeply undemocratic — to pretend they don't exist. The Justice Department should discard the rule and start over. And Obama should reread his pronouncements about transparent government.