Freedom Isn't Free

Updated below:

One administration's attorney general issues the following guidance with respect to implementation of the Freedom of Information Act (FOIA):

The Department of Justice and this Administration are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.
...
I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

Another administration's attorney general issues this FOIA guidance:

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. ... (A)n agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.

Guess which administration sent a letter to the Supreme Court asking the justices to delay consideration of the government's own case in which it is appealing a lower court's decision that the FOIA requires the release of otherwise unclassified photos depicting detainee abuse? It's the same one which issued the following with respect to the FOIA on January 21, 2009:

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government 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.

An administration which has increasingly become "Bush Lite" is proving to be less and less satisfying to those who actually believed the rhetoric.

As disclosed by the ACLU last week, according to a conference summary, House and Senate conferees approved language for the homeland security appropriations bill that, if passed, would grant the Department of Defense (DOD) the authority to continue suppressing photos depicting the abuse of prisoners in U.S. custody overseas. The language described in the summary appears to incorporate an amendment put forth by Senator Joe Lieberman (I-CT) that would allow DOD to exempt the photos from the FOIA. The photos were ordered released by a federal appeals court as part of an American Civil Liberties Union FOIA lawsuit.

As reported by Fox News: Due to "recent and significant legislative developments" Solicitor General Kagan asked the justices to delay consideration of the government's own case in which it is appealing a lower court's decision that the FOIA requires release of the photos.

The Supreme Court took no action Tuesday on a controversial appeal asking the justices to keep under wraps classified (sic) photographs of War on Terror detainees that have been likened to the infamous pictures at Abu Ghraib prison.

The court's consideration of the case coincides with congressional efforts to pass a law giving the secretary of defense the authority to exempt the photographs from Freedom of Information Act disclosures. A measure to do that passed a joint conference committee of the House and Senate last week.

The justices were scheduled to discuss the matter in their closed-door meeting Friday but may have been persuaded to postpone judgment by the government, which last week sent a letter to the court asking them not to move on the case.

...

But the letter shows the Obama administration's top priority is keeping the pictures sealed - and that it believes that can be better accomplished by legislative means than court action.

Kagan's letter isn't the first unusual move from the government in this case. Earlier this year, after saying his administration would not appeal to the high court, President Obama reversed course.

Imagine the outrage if it had been the Bush administration that had endorsed such an affront to the FOIA?

Update:

Per this report:

The Obama administration indicated in court papers it may appeal a federal judge's ruling ordering the Justice Department to release portions of the transcribed interview between former Vice President Dick Cheney and Patrick Fitzgerald, the special prosecutor appointed to probe the roles Bush administration officials played in the leak of covert CIA operative Valerie Plame Wilson six years ago.

Talk about presumptuous!