Presidential pardons: Obama administration puts privacy above transparency

In a brief filed Friday in a federal appeals court in Washington, the Obama administration is fighting for the right to deny a journalist’s request for the names of 9,200 individuals denied clemency by President George W. Bush and, by implication, the names of those who may be denied pardons by Obama down the road.

“Pardon and commutation applicants have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency,” the Justice Department wrote in the brief opposing the request by former Washington Post reporter George Lardner Jr. “The substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names.”

The odd twist to this case is that while the Justice Department is fighting to keep the list of denied pardon applications secret, it has long confirmed the names of pardon applicants and the status of the applications, including any denial, when asked about specific individuals. However, the DoJ contends that disclosing that information about all pending applicants en masse would amount to an unjustified invasion of privacy.

Last July, a district court judge ruled in favor of Lardner and ordered that the list of rejected applicants be made public. But the Justice Department appealed.

“The fact that [the Office of the Pardon Attorney] freely releases the names of unsuccessful clemency applicants to the general public in certain circumstances casts significant doubt on OPA’s claim that its records reflecting this information should be treated as confidential law enforcement records that must be protected,” Judge Colleen Kollar-Kotelly wrote.

However, in its appeal, the DoJ argues that the ruling was wrong and even suggests that disclosing the list of nixed names could lead to violence against applicants. “Disclosure of the fact that individual offenders have unsuccessfully sought pardons or commutations unquestionably will re-stigmatize the applicants and draw renewed attention to their offenses, thereby harming their prospects for successful rehabilitation and reintegration into the community, as well as possibly subjecting them to the risk of retaliation,” the department wrote.

Even though the head of the Justice Department’s pardon office for most of Bush’s presidency admitted in an internal investigation that an applicant’s ethnicity could sometimes undercut his application, the department argued that the list of denied applicants would give no insight into that alleged practice.

“The names of unsuccessful applicants, standing alone, reveal virtually nothing about the clemency process and shed no light whatever on the reasons for the denials or the manner in which the pardon and commutation system works. … Nor is there any reason to believe that the list would reveal the presence of improper ethnic considerations in the clemency process,” the brief says.

In another unusual argument given the administration’s public commitment to transparency, DoJ lawyers contend that a requirement that some Freedom of Information Act responses be posted on the Web so they can be widely and readily available to the public is an additional reason why Lardner’s request should be denied.

The names of those granted pardons or commutations by presidents have been made public, at least in recent decades, and are posted on the Justice Department website, even though making those decisions public can also embarrass recipients by publicizing a long-ago transgression.

However, there has been no such disclosure during the Obama administration for a simple reason: After more than 14 months in office, the president has yet to issue a single pardon or commutation.

Full disclosure: About a decade ago, in the wake of the flap over President Bill Clinton’s pardon of financier Marc Rich, I wrote an op-ed in The New York Times urging that the names of pardon applicants and their applications be made public.

Copyright 2010 Capitol News Company LLC