Court: Name the Lobbyists!

By William Fisher

Despite President Barack Obama’s pledge in the State of the Union address, to “require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress,” the Electronic Frontier Foundation (EFF) says the Obama Administration has been “fighting hard to stop the release of the names of these representatives.”

“While it's great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the Administration must do more than give speeches in order to fulfill its commitment to transparency,” EFF urged.

It said President Obama “must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”

For the past few years, the not-for-profit EFF has been litigating a Freedom of Information Act (FOIA) case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity.

“With the help of lobbyists from AT&T, Verizon, and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program,” EFF contends.

The group says the Administration “must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”

Prof. Peter Shane of the Ohio State University’s law school is among many legal experts who agree with the EFF position. He told IPS, “On his first full day in office, President Obama issued a presidential memorandum that declared: ‘The presumption of disclosure should be applied to all decisions involving FOIA.’ Pursuant to the Obama directive, Attorney General Holder two months later issued a new Justice Department FOIA policy that declared: ‘The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or
(2) disclosure is prohibited by law.’ It's hard to see why the straightforward application of these principles would not lead to releasing the names of lobbyists.”

Last week, a federal appeals court in San Francisco agreed with EFF, Prof. Shane, and other advocates for transparency. The judges rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans.

The court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."

EFF has been seeking records detailing the telecoms' campaign for retroactive legal immunity under FOIA. Telecom immunity was enacted as part of the FISA Amendments Act of 2008. Then-Senator Obama voted in favor of immunity.

EFF called the ruling “an important one for government and corporate accountability." EFF Staff Attorney Marcia Hofmann said, "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."

But a number of legal authorities believe there is an even broader issue at play: The Obama administration’s continuance of its predecessor’s court positions, including its view on this case. For example, Francis Boyle, a professor at the University of Illinois law school, told IPS, “U.S. Solicitor General Elena Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court.”

He called Kagan ‘a closet Neo-Conservative,” adding, “She has supported at all levels of litigation in U.S. Federal Courts up to and including the US Supreme Court every hideous atrocity that the Bush administration inflicted upon the United States Constitution, our Bill of Rights, Civil Rights, Civil Liberties and Human Rights for the eight years of that benighted administration.”

Another civil liberties leader, Chip Pitts, president of the Bill of Rights Defense Committee, also weighed in. He told IPS, “Like President Obama’s reversals and actions against accountability in other areas – including his support of the Patriot Act, FISA Amendments Act, telecom immunity, and his failure to prosecute Bush officials and release the photos that evidence torture – the president’s continuing to invoke national security and the state secret privilege to shield lobbyists’ actions emboldens the burgeoning military/industrial/surveillance complex while diminishing hopes for real change.”

He stressed that “It’s vital to see where the true equities are here: greater transparency from government and corporations can and should exist in harmony and not in tension with better governance and greater individual privacy, liberty, and freedom from infringements by powerful actors. Unwarranted ‘privacy’ claims by those special interests should not be used as an excuse to block the public’s legitimate right to know how decisions affecting fundamental rights are made.”

The appeals court sent part of the case back to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.

After the decision was announced, EFF Attorney Kevin Bankston noted that “Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin.”

EFF Legal Director Cindy Cohn similarly pointed out what she called the Obama Administration's hypocrisy. “Considering that Obama "campaigned for a return to the rule of law, it's disappointing...to have them turn around and say that courts can't even look at these cases."

EFF’s Bankston also finds the government's position “in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June, 2008, now Attorney General Holder said in a speech that: ‘Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . These steps were wrong when they were initiated and they are wrong today.’

Similarly, he says, “The Obama-Biden campaign website includes state secrets as part of ‘The Problem’ that President Obama would address, complaining that the Bush Administration invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."

Legislative efforts to reform the use of the state secrets privilege are now moving slowly through the Congress.