"A New Era of Openness?": Disclosing Intelligence to Congress Under Obama

As a candidate, Barack Obama promised “a new era of openness,” and his administration has taken some significant steps to increase transparency in the executive branch. But it has also continued the Bush administration’s policy of invoking the state secrets privilege to avoid judicial scrutiny of controversial warrantless surveillance and torture programs. Many commentators have noted the parallels between the Bush and Obama policies on disclosing sensitive information to courts, but they have paid little attention to how the Obama administration compares with the Bush administration in disclosing sensitive information to Congress. This essay fills that gap, and looks in detail at the Bush and Obama administration responses to legislative proposals for expanding intelligence disclosures to Congress. It reviews both the Bush and Obama administration positions on legislation that would require intelligence disclosure to Congress, and finds that there are substantial similarities - though not identity - between the Bush and Obama administrations. Both administrations have opposed disclosure of covert actions to the full intelligence committees as well as mandated disclosure of internal executive branch legal advice. On these most sensitive intelligence issues, we will see increased disclosure to Congress only over the objection of President Barack Obama.