Improving Transparency

Making information available to Congress and the public so they can pursue effective remedies.

When To Do This

Transparency is important in cases where evidence already exists, but is being withheld from those who could benefit from having access to it, or decisions are being made without adequate consultation.  Notifications and reports on internal government processes and the use of legal authorities are helpful in enabling effective oversight.

How To Do This

Mandate the publication of data, provide for the declassification of documents, or require that the administration notify Congress before taking an action or after exercising an authority.

What You Should Know Before Proceeding

  • Provide the administration with authority and flexibility to withhold from publication information that is classified, would violate privacy, or would endanger the health or safety of individuals targeted for exercising their freedoms.
  • Ensure that legislation accurately describes information or reports that are already being compiled when requiring that they be made public. Any slight deviation will be interpreted as either requiring the collection of new information or enabling publication of something other than the full text of the desired document.
  • If the information you desire is classified, require that an unclassified summary be developed and made public.

Good Practices

  • Provide the administration with authority and flexibility to withhold from publication information that is classified, would violate privacy, or would endanger the health or safety of individuals targeted for exercising their freedoms.
  • Ensure that legislation accurately describes information or reports that are already being compiled when requiring that they be made public.  Any slight deviation will be interpreted as either requiring the collection of new information or enabling publication of something other than the full text of the desired document.
  • If the information you desire is classified, require that an unclassified summary be developed and made public.

Precedents

  Declassifying Documents
  1. Preparing for Declassification and Disclosure. 1220 (105th), the Human Rights Information Act, would have required certain Federal agencies to identify and organize all human rights records regarding activities occurring in Guatemala and Honduras after 1944 for declassification and disclosure purposes, and to make them available to the public and other official entities, including Latin American or Caribbean countries. Later versions of this bill, never enacted, (such as H.R. 2534, 108th) were not limited to specific countries.
  2. Creating a Declassification Board. Title VII of the Intelligence Authorization Act for FY 2001 (PL 106-567) establishes a Public Interest Declassification Board and sets out procedures for ensuring access to national security information of extraordinary public interest. The board’s nine members drawn from the public – five appointed by the President and four appointed by the respective leaders of Congress – meet regularly to examine the strengths and weaknesses of the existing declassification system, review congressional requests for declassification, and make recommendations to the President.
  3. Forcing the Release of Captured Iraqi Documents. In November 2005, Rep. Peter Hoekstra and Sen. Pat Roberts asked John Negroponte, then Director of National Intelligence, to release captured Iraqi documents relating to Saddam’s nuclear program and ties to al-Qaeda. After several months without progress, Hoekstra introduced a bill (HR 4869, 109th) to mandate the posting of the documents on the Internet. Negroponte began releasing the documents two weeks later. Although these documents are not directly human rights-related, the legislation is a potentially useful model both for mandating the release of documents and for pressuring the administration to take action.
  Publishing Data
  1. Data on Federal Spending and Contracting. The Digital Accountability and Transparency Act of 2014 (PL 113-101) requires that by May 9, 2018 the Treasury Department and the Office of Management and Budget (OMB) must publish all government spending information on the gov website. The Foreign Aid Transparency and Accountability Act of 2016 (PL 114-191) requires comprehensive, timely, and comparable information on U.S. foreign assistance programs to be published on the ForeignAssistance.gov website. The information on these sites can be helpful for monitoring U.S. spending on international human rights and democracy programs and determining its effectiveness.
  2. Budget for Security Cooperation Programs. Section 1249 of the FY 2017 National Defense Authorization Act (PL 114-328) requires the Defense Department to submit to Congress a consolidated annual budget for security cooperation programs and activities, as well as a quarterly report on the use of funds. This information enables congressional, public and local oversight of support provided to foreign armed forces that may be engaged in predatory or corrupt practices.
  3. Annual Military Assistance Reports. Section 655 of the Foreign Assistance Act of 1961 (PL 87-195) requires the President to provide Congress with an annual report on military aid provided to foreign countries, and to make this information available on the Internet. However, the reports are often late and are published as PDF documents, rather than as open, machine-readable data. Section 656 of the same act requires an annual report on foreign military training, which shows which parts of foreign militaries the U.S. is partnering with, so researchers can verify compliance with the Leahy Law.
  4. Protecting Health and Security of Partners. The Foreign Aid Transparency and Accountability Act of 2016 (PL 114-191) requires the publication of detailed data on U.S. foreign assistance spending, but contains an exception (in Sec. 4(b)(3)(A)) if including a required item of information online “would jeopardize the health or security of an implementing partner or program beneficiary or would require the release of proprietary information of an implementing partner or program beneficiary.”
  Notifying Congress
  1. Notification of Changes in Programs, Projects and Activities. The annual SFOA (most recently Sec. 7015 of PL 114-113) requires 15-day advance notification of the Appropriations Committees of new programs, eliminated programs, and other changes not contained in the annual budget justification, as well as spending for specific countries and certain transfers of funds. Section 634A of the Foreign Assistance Act of 1961 (PL 87-195) contains a similar requirement for notification to the authorizing committees. Adding countries and programs to the list for which prior notification is required can improve oversight, provide opportunities for dialogue with the administration, and send a strong human rights message.
  2. Notification of Arms Transfers. Section 36 of the Arms Export Control Act ( 2776 of 22 U.S.C. 39) governs congressional notification of sales of defense equipment to foreign countries. The process for congressional review is also described in that section, although the procedures for consideration of a resolution of disapproval in the Senate are set out in Section 601(b) of the International Security Assistance and Arms Export Control Act of 1976 (P.L. 94-329, 90 Stat. 729).
  3. Report on Projected Arms Sales. Section 25 of the Arms Export Control Act ( 2765 of 22 U.S.C. 39) requires an annual report to Congress, known as the “Javits Report”, covering all projected and eligible sales to foreign countries of major weapons or weapons-related defense equipment above the designated thresholds. This report, which contains classified and procurement-sensitive information, is not made available to the public.
  4. 15-day Notice of Counterdrug Activities. Under Chapter 18 of Title 10, U.S. Code (as modified by Sec. 1011 of the FY 2017 National Defense Authorization Act, PL 114-328), the Secretary of Defense is required to notify Congress 15 days before providing support to foreign law enforcement agencies. The law sets out a detailed list of all the types of information that must be submitted, and requires that the notice be coordinated with the Secretary of State. (Similar requirements apply to train and equip programs and other security cooperation authorities.) The Senate Armed Services Committee keeps a record of all its congressional notifications at the front desk of the main committee room, a practice that other committees could, but do not, observe.
  5. Determining Whether Acts Constitute Genocide. 7033(d) of the FY 2016 SFOA (PL 114-113) requires the Secretary of State to submit an evaluation of the persecution of Christians in the Middle East and Muslims in Burma, including whether either situation constitutes mass atrocities or genocide, and a detailed description of any proposed atrocities prevention response recommended by the Atrocities Prevention Board.