The Project On Government Oversight (POGO) Blog

Many of POGO's Recommendations Included in Obama's New Action Plan on Transparency

By DANA LIEBELSON and BRYAN RAHIJA

POGO is enthusiastic about the White House's new U.S. National Action Plan on transparency, which was made public today. The plan's release coincides with a speech President Obama gave this afternoon as part of the Open Government Partnership. A great number of POGO's recommendations are incorporated in the plan.

In early September, POGO and partners submitted comments and top policy priorities on an openness agenda to the Obama Administration. Back then POGO wrote, “The president is still not able to say his administration is the most open in history. Many in the openness community want to help the president achieve his objective on openness.” POGO’s recommendations included improving implementation of the Freedom of Information Act (FOIA), creating an executive order on whistleblower protections and establishing a Presidential Advisory Committee on Open Government (or PACOG.)

As we noted in a statement this morning, the new plan incorporates many of these suggestions. It commits not only to supporting legislation that protects federal whistleblowers, but to using executive power (for example, by issuing an executive order) to impose new protections if Congress fails to enact reforms. It also commits to improving FOIA administration; declassifying information that should be public; increasing transparency in federal spending, revenue collection for natural resources on public lands, and international financial systems; and also modernizing federal records so as to preserve agency emails.

State Secrets Privilege: Five Questions with Professor Laura Donohue

By Bryan Rahija

A new online tool may shed light on the government's use (and abuse?) of the state secrets privilege, an evidentiary rule that allows the executive branch to resist court-ordered disclosure of information during litigation if it believes disclosure would harm national security. The Georgetown Center on National Security and the Law recently unveiled the State Secrets Archives, an online, searchable database of materials related to cases involving the state secrets privilege. POGO caught up with Professor Laura Donohue, who spearheaded the project, to ask her a few questions.

POGO: What's the biggest takeaway you would like the average visitor to get from the State Secrets Archives?

Professor Laura Donohue: The takeaway depends on why the user is going to the Archives. The site is designed to allow users to compile data, look at cross-cuts, and read the primary source documents. So it is a tool that can help users analyze and contribute further to our understanding of state secrets doctrine. Simultaneously, the site is replete with secondary sources that will be particularly helpful both to individuals who already know a substantial amount about the privilege, and who are looking for thoughtful analysis of it, as well as to those who have little or know prior knowledge of the doctrine.  The archive provides information on the contours of state secrets and invites users to learn more about how it operates in practice.

POGO: The State Secrets Archives' "About" page says that despite heightened public awareness of the state secrets privilege, "little is known about how it actually works." What is the biggest misconception about the state secrets privilege and how it's used?

LD: The biggest misconception is that published judicial opinions accurately convey how the executive branch is using state secrets. Eighty percent of the appellate courts’ caseload, for instance, is unpublished. Memoranda and orders issued by the courts early in suits may dispose of state secrets cases. And there are numerous voluntary dismissals. In some situations, cases where state secrets is never formally asserted may be treated in a manner consistent with cases where it has been asserted and upheld. What this means is that we have been missing the bulk of the cases that deal with state secrets—and, in the process, missing how the doctrine actually plays out in litigation.