Is the "war against public access" over in Washington?

Despite isolated incidents and the expected tensions between the incoming administration and the press, President Obama has ended “the Bush-Cheney gang’s … multifront war against public access,” San Francisco Chronicle Editorial Page Editor John Diaz asserts. – DR

The end of a war against public access
John Diaz
Sunday, February 1, 2009

It didn’t take long for tensions to emerge between President Obama and the White House press corps. On Day Two, some journalists assigned to cover the president openly bristled that only four print reporters were allowed to witness the do-over of Obama taking the oath of office. No still or video photographers were allowed. Major wire services refused to distribute the White House handout photo of the event.

The next day, Obama appeared irritated when he was hit with substantive questions as he made what he thought would be a casual end-of-day visit to the White House Press Room. “I can’t end up visiting with you guys and shaking hands if I’m going to get grilled every time I come down here,” Obama told reporters.

Also in the first week, White House press secretary Robert Gibbs was grilled about why ABC television, which happened to host the D.C. Neighborhood Ball, was granted an exclusive Inauguration Day interview.

Some reporters grumbled about the timeliness of the online posting of the first major bill Obama signed, the Lilly Ledbetter Fair Pay Act. Obama had promised during the campaign to post pending legislation on to give the public an opportunity to review it in advance.

These tensions are healthy and expected, a part of the historic adversarial relationship between government and the news media. The admirers and detractors of Obama who expected the White House press corps to be “in the tank” for the new president are likely to be disappointed.

Beyond these relatively routine skirmishes over access and the rules of engagement were bold strokes by Obama to reverse Bush administration policies that had severely restricted public access to information.

Perhaps the most significant was the repeal of a policy outlined in an Oct. 12, 2001, letter to federal agencies by then-Attorney General John Ashcroft that effectively urged them to resist Freedom of Information Act requests. Although it came soon after the 9/11 terrorist attacks, its reach went well beyond national security. The attorney general expressed a concern that “institutional, commercial and personal privacy interests” could be jeopardized by the use of the 35-year-old law. He assured agency heads that the “Department of Justice will defend your decisions” to withhold records, unless such denials lacked a “sound legal basis.”

On his first days in office, Obama restored a “presumption in favor of disclosure” on FOIA requests. “The government,” he said, “should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

Obama also repealed his predecessor’s 2001 executive order that endowed former presidents and their heirs with near-absolute authority to invoke executive privilege to keep presidential records secret. Obama’s order re-established the principle that White House records belong to the public – while maintaining a necessary process for current and former presidents to review and withhold documents whose disclosure might have negative national security implications.

Obama’s follow-through on his campaign pledge for greater government transparency is a refreshing change from the Bush White House, which seemed to go out of its way to undercut the media’s watchdog role, from its refusal to reveal the composition of Vice President Dick Cheney’s energy task force to the unprecedented succession of subpoenas designed to intimidate reporters into revealing their sources. The Bush administration also configured the Web site in a way that stymied its compatibility with search engines – an issue that was quickly addressed by Obama’s White House media team.

During the campaign, both Obama and Sen. John McCain, R-Ariz., expressed their support for a federal shield law that would allow journalists to protect the identity of confidential sources – and I look forward to the day that Congress will deliver him such legislation. Bush’s Justice Department had argued against a shield law on the patently disingenuous claim that it would provide refuge for criminals and terrorists. The bill contains clear exemptions for threats to national security or physical harm.

It does not, however, protect presidents and other government officials who break the law by eavesdropping on people inside the United States without court warrants, present false evidence to justify the launch of a war or countenance the torture of suspects in American custody. Cheney recently allowed that it “always aggravated me” that the New York Times won a Pulitzer Prize for its disclosure of warrantless wiretapping.

Sorry, Dick Cheney, aggravation of people in power is just part of the price of a free and robust press. The Bush-Cheney gang never seemed to accept this aspect of democracy; instead, it waged a multifront war against public access.

Obama has ended that war. Still, he will not be immune from such aggravations. At some point, his restoration of the Freedom of Information Act and access to presidential papers might cause him some grief. Yet the presence of these opened windows just might give him pause that would spare him from even greater regrets, a point he seems to appreciate.