Above photo: White House/public domain.
FOIA is just as fragile and in disrepair as it was when Biden was elected.
Editor’s Note: The following is the first in a series of articles on President Joe Biden’s legacy when it comes to press freedom, whistleblowing, and government secrecy. The series will be published from now until January 2025.
President Joe Biden’s administration promised a “recommitment to the highest standards of transparency,” and officials were well aware of the extent to which Donald Trump’s administration had engaged in censorship and undermined the Freedom of Information Act (FOIA).
Despite promises, when it came to FOIA and the public’s right to know, the Biden administration was just as bad or slightly worse than the Trump administration during its last fiscal year in office. In fiscal year 2023, United States government agencies censored, withheld, or claimed that they could not find any records two-thirds of the time.
According to Matthew Connelly, author of “The Declassification Engine: What History Reveals About America’s Top Secrets,” the Biden administration did not give “policymaking in this area much more priority” than the Trump administration. “After his first year, advocacy groups were unable to find anyone in the White House who was even working on the issue.”
Attorney General Merrick Garland issued a memorandum on FOIA in 2022 that directed “all executive branch departments and agencies to apply a presumption of openness” when it comes to FOIA. It also made clear that the Justice Department (DOJ) would not defend “nondisclosure decisions” when a department or agency failed to do so. Yet this was the empty pledge put forward by the DOJ for the past 15 years.
In 2009, Attorney General Eric Holder claimed the government would only defend a denial of a FOIA request in court if the agency reasonably foresaw that “disclosure would harm an interest protected by one of the statutory exemptions” or if disclosure was “prohibited by law.” Officials under President Barack Obama still fought the release of the DOJ’s Office of Legal Counsel (OLC) legal opinions and other records.
Similarly, in October 2024, the Biden DOJ appealed [PDF] a landmark decision that ordered [PDF] the government to proactively disclose OLC legal opinions as required by FOIA’s “reading-room provision.”
The Knight First Amendment Institute had pursued transparency because “[t]wenty years ago, legal contortions by OLC lawyers green-lighted torture and other gross human rights violations in Iraq, Guantánamo Bay, and secret CIA prisons.” Disclosure was necessary to discourage the OLC from acting as a “secretive legal shop with the power to bend or distort the law for the White House or federal agencies.”
As a result of the Biden DOJ’s resistance to openness, the second Trump administration will not have to worry about the public learning about any secret reinterpretations of the law that are pursued to bolster the imperial presidency.
Surveillance Secrecy, Censoring Guantanamo Prisoners’ Art
The American Civil Liberties Union (ACLU) and the New York Times sued the Biden administration after it refused to disclose the “rules governing lethal strikes outside of recognized warzones.” Initially, not only did Biden officials ignore calls to release the rules, but according to Just Security, the administration would not even release a fact sheet for the government’s “drone-strike playbook” like Obama did.
Though the Senate Select Committee on Intelligence’s report on CIA torture confirmed that the agency had “operational control” over Camp VII at Guantanamo Bay, the Biden administration defended the CIA from having to confirm or deny whether it had further information about the agency’s role at Guantanamo.
As the ACLU outlined, declassified documents as well as “documents and transcripts from the Guantánamo military commissions proceedings” were publicly available. Fighting this FOIA request in court represented a naked attempt to protect the CIA from facing further scorn for heinous acts that the agency committed in the global “war on terrorism.”
The Pentagon ended a Trump policy that barred 41 prisoners at Guantanamo from taking their art if and when they were released. Buzzfeed reporter Jason Leopold fought for the disclosure of prisoner art, and in 2022, U.S. Southern Command finally released “photographed copies of the artwork.” But hundreds of paintings were censored.
“When prisoners’ art could potentially disclose military secrets, we’re well through the looking glass,” the Electronic Frontier Foundation and MuckRock News declared.
A panel established by Congress that is known as the Public Interest Declassification Board recommended disclosure of the full intelligence report on journalist Jamal Khashoggi and the Kingdom of Saudi Arabia’s involvement in his murder. However, Biden only released a redacted version of the report and the Biden DOJ fought a FOIA lawsuit to force greater transparency.
When the ACLU asked the U.S. Supreme Court to order the Foreign Intelligence Surveillance Court to release all legal opinions containing novel or significant interpretations of the law, the Biden Justice Department defended the secret surveillance court. Officials insisted that the courts do not even have jurisdiction to consider whether citizens’ have a First Amendment right to access the surveillance court’s legal opinions.
The Supreme Court sided with the administration and refused to hear the ACLU’s appeal. Justices Neil Gorsuch and Sonia Sotomayor dissented [PDF]. “This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” and, “If these matters are not worthy of our time, what is?” (Article III in the U.S. Constitution established the judicial branch.)
Hiding JFK Assassination Records, ‘Virtual Visitor Logs’
In 2022, the Mary Ferrell Foundation sued Biden and the National Archives and Records Administration for failing to fulfill the requirements of the JFK Assassination Records Collection Act. The organization accused Biden of relying on flimsy claims of “anticipated harm” to keep thousands of records hidden because decades later the CIA and other executive branch agencies still oppose their disclosure.
The Biden DOJ defended the Homeland Security Department (DHS) as NPR fought for thousands of pages of “confidential inspection reports” detailing conditions in Immigration and Customs Enforcement (ICE) detention facilities. The reports described “barbaric practices, negligent medical care, racist abuse and filthy conditions.”
In 2022, the U.S. District Court in the District of Columbia found that DHS had inappropriately invoked FOIA exemptions to hide “purely factual information” and instructed DHS to re-process NPR’s request for records.
Before Amos Hochstein played a key role in helping the Biden administration support Israel’s ethnic cleansing campaign in Gaza, he was a Biden energy official. Friends of the Earth, an environmental organization, sued the State Department in 2022 and 2023 to obtain files on Hochstein.
“Hochstein enjoyed a profitable run in the private sector that included consulting and speaking fees from fossil fuel interests and an executive position at LNG developer Tellurian,” Friends of the Earth (FOE) recalled. “Since the Russian invasion of Ukraine, Hochstein has assumed a leading role in the newly established US-EU Energy Security Task Force, whose mandate includes increasing LNG exports to Europe.”
FOE sought to uncover whether Hochstein was more engaged in fossil fuel lobbying than diplomacy. Eventually, some records were released, but the State Department’s refusal to comply with FOIA meant that the organization had no idea how many documents the department had on Hochstein and how long it would be before they received all the records responsive to their request.
Trump received widespread condemnation for hiding visitor logs from the press and public. Biden resumed the disclosure of visitor logs after he assumed office, but his administration carved a loophole in its commitment to openness by excluding “virtual visitor logs.”
Due to the COVID-19 pandemic, as POLITICO reported, virtual meetings were the “primary mode of interaction” for Biden during his first year in office. Lists of attendees were kept secret.
Open government groups urged Biden to “take action” on “disappearing messaging apps and mandate messaging apps capture communications used in official business.” Several Trump officials were known to have used Signal, which would make it difficult for agencies to abide by the Presidential Records Act and retain communication records. But the Biden administration did nothing meaningful to address this issue.
A ‘Tsunami’ Of Secrets
After the Director of National Intelligence Avril Haines called attention to government secrecy in January 2023, a group of U.S. senators unveiled legislation that they claimed would significantly deal with government secrecy and reform the “classification process.” It proposed designating the Office of the Director of National Intelligence (ODNI) as the “executive agent for classification and declassification,” developing “technical solutions” for automatic declassification, and establishing an executive committee for the classification and declassification of records.
However, if adopted, this legislation almost certainly would have entrenched more decision-making power in the hands of the U.S. president and security agencies, who have consistently worked to thwart transparency on national security and military matters.
To further illustrate the absurdity of government secrecy, Haines sent a letter on overclassification to Democratic Senator Ron Wyden and Republican Senator Jerry Moran in January 2022. It had an attachment on “declassification efforts” at U.S. intelligence agencies.
The version of the attachment [PDF] released to the public censored the amount of funds spent each year by the CIA, National Security Agency, Defense Intelligence Agency, National Geospatial-Intelligence Agency, and the ODNI, which Haines oversaw.
Government officials, according to Matthew Connelly, spend around $18 billion a year to keep secrets. More specifically, the DOJ spends about $40 million a year on litigation to fight the release of records.
FOIA is plagued by systemic problems. Under Biden, the Project on Government Oversight (POGO) called attention to the “uptick in submitted FOIA requests, combined with the chronic underfunding of agency FOIA offices,” which “means that agency backlogs and processing delays continue to increase.”
“When agencies do respond to requests, FOIA exemptions meant to protect classified or otherwise legally sensitive information are often used to excessively withhold information that rightfully belongs to the public,” POGO added.
The Information Security Oversight Office (ISOO) indicated in 2021 that agencies could “no longer keep [their] heads above the tsunami of digitally created classified records.”
Walter Shaub, who was the director of the Office of Government Ethics and worked as a fellow at POGO, warned after Trump’s first term, “We’ve been through four years of having to battle tooth and nail to get any documents, and we need [Biden] to set up new systems so the next administration will follow them.”
No “systems” for greater transparency were established, and issues with FOIA were not properly dealt with. As Trump returns to the White House, FOIA is just as fragile and in disrepair as it was when Biden was elected in 2020.