Obama presidency keeps some Bush secrets

State secrets privilege
During the presidential campaign, Obama said Bush invoked the state secrets privilege too often, and Holder has ordered a review of those cases. But Obama has since reasserted it in two cases where Bush earlier claimed it to prevent disclosure of his anti-terror tactics.

The NSA wiretapping case, filed shortly before Bush left office, was the first time Obama asserted the privilege on his own to try to kill a suit.

Last Monday's decision not to release additional documents about the FBI data warehouse was the first one about a pending case since Holder issued the new freedom of information standard and said Bush-era decisions involved in pending suits could be revisited.

U.S. District Judge Reggie Walton had given the government 60 days to decide whether the new guidelines might alter its position. The government's response declining to disclose more data did not say whether the Justice Department used the time to re-evaluate the Bush-era decisions.

Comparing the Obama decisions, attorney Sobel said, "The `torture' memos affected a handful of people while this database potentially affects millions of American citizens. The average American was not likely to be tortured at the Guantanamo Bay prison, but they are likely to have information about them in this massive database which remains a black hole. We don't even know what material they're collecting."

Begun in 2004, the data warehouse contains at least 53 databases that are refreshed regularly. Nearly three-quarters of the data comes from outside the FBI. Some 13,500 FBI agents, 2,000 FBI analysts and selected other federal, state and local law enforcement officers on joint task forces with the FBI can access the material, which includes unclassified documents and data classified confidential or secret, but not top secret.

Censored documents released
The heavily censored documents already released show the warehouse contains the FBI's electronic case files; its lists of people and groups "associated with" violent gangs and terrorist organizations; criminal histories from the National Crime Information Center; messages between the FBI and other agencies; newspaper stories from around the world; data about lost, stolen or fraudulent passports; CIA intelligence reports; suspicious banking activity reports; and lists of people barred from aircraft or subject to extra searches before flying.

But the names of more than half the data sets in the warehouse are blacked out.

In the Justice Department's brief, FBI freedom of information chief David Hardy said that "knowledge of the data sources ... would enable individuals involved in criminal or terrorist activities to adapt their activities and methods to avoid detection." New department guidance for deletions like this cautions agencies to "ensure that they are not withholding based on speculative or abstract fears."

The released documents also show the FBI assessed the data warehouse's impact on the privacy of Americans, but won't make those assessments public because it believes federal law doesn't require that.

The new Justice guidance, however, says agencies "should not withhold information simply because (they) may do so legally." It urges release of information that can be made public without "foreseeable harm."

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