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Civil Liberties Issues

Open Government/Freedom of Information

Especially since September 11, the Executive Branch has withheld large amounts of information from the public. This was apparent under the Bush administration and, despite his promises for the most transparent administration in history, President Obama is continuing and deepening government secrecy.

Freedom of Information Act

One of the principal laws giving citizens a check against unnecessary government secrecy is the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Under FOIA, all federal agencies are generally required to disclose records requested in writing by any person. However, agencies may withhold information pursuant to nine exemptions and three exclusions contained in the statute.

Exemption #1

The FOIA exemption most relevant to counterterrorism policies is exemption #1. This exemption allows the government to keep secret information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.” Although there is a right of judicial review to determine if the agency properly acted within the scope of this exception, courts have historically been deferential to the agency’s determination of what national security information needs to be protected. For instance, in May 2003, a federal District Court judge held that the Department of Justice did not have to provide statistics regarding the use of USA PATRIOT Act information gathering techniques.

In ACLU v. US DOJ,  the court remarked that “in the national security context, the reviewing court must give ‘substantial weight’ to [agency] affidavits” describing why the information is being kept secret. Thus, the standard of review is very low. Nevertheless, occasionally a court will rule that the agency overstepped its authority. In June 2004, a federal District Court judge held that the FBI and the TSA improperly withheld information that had been requested under FOIA regarding "no fly" lists that restrict airline travel by certain persons. The judge said that the agencies had made "frivolous claims" on why their information was exempt from disclosure.

Executive Order 13292

The Executive Order (EO) mentioned in FOIA exemption #1 is Executive Order 13292 on Classified National Security Information. With this EO of March 25, 2003, Bush amended President Clinton’s EO on Classified Security Information, making some important changes. For resources on how the EO affects the availability of information to the public, see Public Citizen’s analysis.

AG Ashcroft Memo of October 12, 2001

Additionally, on October 12, 2001, Attorney General John Ashcroft issued a memorandum to heads of federal agencies telling them that DOJ will defend their decision to withhold information requested under FOIA unless the decision “lacks sound legal basis or present[s] an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.” The aim of the memo seemed to be to encourage agencies to increase the denial rate of FOIA requests, reversing Clinton administration policy that encouraged agencies to take a broad view of their obligations under FOIA. For information on the impact of the memo, see Public Citizen’s analysis.

White House Memo of March 19, 2002

The Ashcroft memo was followed by a March 19, 2002, White House memo to all agency heads, reiterating the administration’s desire for agencies to keep more information secret. The memo encourages agencies to use other FOIA exemptions to find ways to withhold "sensitive but nonclassified" information that is not protected under exemption #1.


In 2005, the ACLU filed a FOIA request for documents related to President Bush’s surveillance of Americans. Included in these documents were Office of Legal Counsel (OLC) memos that outlined the legal justification for the President’s authorization of warrantless wiretapping. The government refused to release these documents in February 2006, prompting the ACLU to file a lawsuit asserting its rights under FOIA. In September 2007 and October 2008, the court ordered the government give a better justification for continuing to withhold these documents. In 2009, the ACLU brought a report released by the Offices of Inspectors General on the President’s Surveillance Program to the court. The report discussed some of the memos that the government still refused to release. Eventually, on March 18, 2011, the government released two of these memos, although much of the information was redacted. While a number of documents have been released, the government continues to keep most documents about warrantless wiretapping secret.

President Obama's Executive Orders

On January 21, 2009, President Obama issued two executive orders addressing open government; one instructs government agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests, while the second memo requests recommendations on making the federal government more transparent from the Office of Management and Budget.

FOIA Changes

While the Obama administration has made improvements by requiring federal agencies to update their FOIA procedures, many problems remain in the system. A 2010 government-wide audit found requests as old as 18 years still in the FOIA system that have not been processed. The audit also found that very few government agencies comply with President Obama’s orders. Since then, many more agencies have altered their procedures as demonstrated by a 2011 Knight Open Government Survey which found that about half of federal agencies had implemented changes to their FOIA procedures.