One year into Biden’s presidency, the drive to fulfill this promise of transparency seems to have dissipated. As Biden and his advisers look to the next year, they should prioritize policies that eliminate barriers to transparency and democratic accountability, and work to strengthen those norms for administrations to come.
First, we should give credit where credit is due. In February, the administration released the US intelligence report on the murder of Jamal Khashoggi that the Trump administration had refused to disclose. In May, as promised, Biden resumed the release of White House visitor logs after former President Donald Trump abandoned that practice. (This move, however, deserves only partial credit: these logs don’t include virtual meetings or visits during Biden’s many trips home to Delaware.)
And, more recently, instead of invoking executive privilege to block the release of Trump-era White House communications related to the January 6 insurrection, Biden waived privilege over the records.
The administration has also cultivated a much less hostile relationship with the press than the last administration, with more frequent press briefings and a marked change in tone (though solo press conferences with the President are infrequent). Perhaps most significantly, Attorney General Merrick Garland issued a memorandum banning the Justice Department’s use of subpoenas to seize journalists’ records during whistleblower investigations and prosecutions, subject only to limited exceptions. While the memorandum has yet to be codified in Department regulations, this policy is a commendable step.
Despite progress on these issues, fundamental problems remain, limiting what the public can learn about the government. For example, the administration has taken no apparent steps to address significant problems relating to agencies’ compliance with the Freedom of Information Act.
Though the FOIA is meant to be a core pathway to transparency, long delays and high rates of withholding make getting information into the hands of the public difficult — especially if the requester is unwilling to engage in years-long litigation. In February 2021, a group of more than 40 organizations signed a letter, co-drafted by the Knight Institute, where I work, and the American Civil Liberties Union, outlining ways Biden could improve FOIA administration and encouraging him to issue a memorandum aimed at fixing some of its problems.
Although former President Barack Obama issued a similar memorandum acknowledging the importance of transparency and government accountability on his first full day in office, Biden has not acted on the invitation to bolster and improve FOIA.
The administration has also failed to end the unnecessary secrecy surrounding the final legal opinions of the Department of Justice’s Office of Legal Counsel (OLC) that bind federal agencies and officials on issues of public concern. The FOIA gives the public the right to know what the law is — and these legal opinions have the force and effect of law within the executive branch.
That’s why civil society organizations have called on the OLC to publish those opinions as a matter of course, excluding classified information or information otherwise exempt from disclosure under the FOIA. But the Biden administration has nonetheless maintained the position of previous administrations that the decision to release any particular opinion is a matter of discretion, defending its right to withhold opinions from the public in court (The Knight Institute represents Campaign for Accountability in its lawsuit against the Department of Justice).
Further, despite Biden’s “recommitment to the highest standards of transparency” when it comes to national security and foreign policy, his administration has adopted undemocratic policies of previous administrations in these areas.
As one example, the Biden administration recently argued before the Supreme Court — in a case that first began during the Obama administration — that the public has no constitutional right to see secret Foreign Intelligence Surveillance Court opinions authorizing the surveillance of Americans (The Knight Institute represented the ACLU in its case against the US government).
The Supreme Court then declined to hear the case, effectively blocking the opinions from public release. As another example, in May 2021 the administration defended in court the executive branch’s opaque and overbroad prepublication review system, which creates delays and uncertainty for former government employees who wish to write about their areas of expertise, but must first get their words cleared. (The plaintiffs, who are being represented by the Knight Institute, have now asked the Supreme Court to review the case.)
In 2017, the Trump administration seemed to have ignored the House and Senate Intelligence Committees’ instruction to prepare a new intelligence-community-wide policy on prepublication review. The Biden administration has likewise failed to make any progress — at least publicly — on that front.
And, finally, the administration has continued to wield the Espionage Act against government whistleblowers despite calls for it to disclaim the authority to do so. After the Trump Justice Department filed charges against whistleblower Daniel Hale for leaking classified information about the US drone program to a news outlet, the Biden administration carried on with the case.
Hale was eventually sentenced to 45 months in prison. The Biden administration has also continued the effort to extradite WikiLeaks founder Julian Assange from the United Kingdom to face prosecution in the United States, despite warnings from advocacy groups (including the Knight Institute) that a criminal case against him would pose a profound threat to press freedom.
The Biden administration can and should do better. The public is experiencing a crisis of confidence in the federal government, and its trust and faith cannot be restored if the administration continues to push transparency reforms to the wayside.
As Biden enters the second year of his term, he must reject the undemocratic policies of his predecessors, adopt new policies and practices that reflect his administration’s values, and work to solidify those norms for the executive branch going forward.
