[Editorial note: This post is written by guest blogger
Steve Charnovitz of George Washington University Law School. The views expressed herein are solely those of the individual contributor and do
not necessarily reflect those of Public Citizen.]
This is a follow-up to my blog post of July 20, 2009
about my efforts to use the Freedom of Information Act (FOIA) to get the Office
of the U.S. Trade Representative (USTR) to
release the text of the US-Russia Bilateral Market Access agreements signed on November 19, 2006. After several unsuccessful efforts by email
and phone to get the text, I had written to the USTR FOIA officer, Carmen Suro-Bredie, on November
19, 2008. The US-Russia
agreement was negotiated as part of Russia’s
longtime efforts to join the World Trade Organization and I was interested to
see the precise terms of this legal arrangement.
Ms. Suro-Bredie denied my request in a letter dated July 28, 2009
which I received on August 3. She said
that the completed trade agreements are considered “foreign government
information” that are exempt from disclosure under Exemption 1 of the FOIA. In addition, she described her turndown
letter as a “complete response to your request,” and advised that “I am closing
your file in this office.”
Although I was surprised about how long it takes to get a
response from USTR (251 days elapsed between
November 19 and July 28), I was not surprised by USTR’s
position that it will disclose only what it is required to by law. As a
veteran USTR watcher, I have observed that USTR
is hardwired to keep trade treaties and negotiations as secret as possible from
the American public. Bureaucracies are
highly resistant to change, even when a new Administration comes to office
promising “Change We Can Believe In” and specifically pledging that it wanted a
presumption for FOIA disclosure and greater transparency and accountability in
government. So I was not surprised by the turndown of my request for
transparency.
But I was surprised by the specific reason Ms. Suro-Bredie
gave for the denial. Her letter states:
“The individual (unimplemented) agreements are protected from public disclosure
as Confidential WTO Information under WTO procedures to which the U.S.
has agreed.” I was surprised by this
because I had not been aware that the WTO had adopted binding obligations which
prevent the United States
from disclosing its agreement with Russia
to the American public. Certainly,
Article XII of the WTO Agreement (Accession) says nothing about a secrecy pact,
and the webpage on the WTO website for Accession does not contain any
information about such a nondisclosure requirement in WTO regulations. Of course, it is possible that the United
States has surrendered some of its
sovereignty to the WTO regarding transparency.
As I have noted in my trade law scholarship, the WTO accession process is one of the most unaccountable and secretive of all of the WTO negotiations.
In summary, USTR will not
publicly disclose the text of the US-Russia trade deal signed by the Bush
Administration. That’s a sad outcome in my view because it undermines the
legitimacy of US
trade policy, and also the legitimacy of the WTO, if what Ms. Suro-Bredie says
is true. I would urge an enterprising reporter to investigate this matter with
the WTO to see whether such a binding rule is in place and, if so, when it was
adopted. It would also be interesting to
know whether this purported act of WTO rulemaking has been reported to the
Congress pursuant to the reporting requirements in Section 122(c) of the
Uruguay Round Agreements Act.
It’s also clear to me that Congress needs to amend the
organic act establishing USTR to require the
public disclosure of any trade agreement signed by the United
States. Reasonable people may differ on how much secrecy is needed for ongoing
trade negotiations. But I have never
heard any argument to justify why a trade agreement signed by the United
States should remain a secret from the
American people. If new trade
negotiating authority is enacted, it should also contain much tougher public
disclosure requirements. It’s time to
begin a new era of responsibility in Washington.
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