'Most Transparent' Administration Once Again Irritates A Federal Judge By Refusing To Cough Up A Requested Document

from the let-them-eat-redactions dept

Tue, Dec 31st 2013 9:54am — Tim Cushing

The self-described "most transparent administration in history" is once again being chastised by the courts for burying documents demanded by the public. In November, the DOJ flat out refused a FISC court order to declassify a document pertaining to the government's interpretation of Section 215 of the PATRIOT Act. The DOJ's response was basically, "Yeah, we heard you. But we're not doing it."

This time around it's a document that can't be tied to "national security" or the "war on terror" except in the most tenuous terms. Politico reports that a federal judge is once again going head-to-head with the DOJ over the release of a document.

Rejecting one of the Obama White House's most aggressive attempts to preserve executive branch secrecy, a federal judge Tuesday ordered the disclosure of a government-wide foreign-aid directive President Barack Obama signed in 2010 but refused to make public.

The Justice Department asserted that the Presidential Policy Directive on Global Development [PPD-6] was covered by executive privilege, even though it is unclassified and reflected standing guidance to agencies rather than advice given to the president.

Judge Ellen Huvelle ordered this document delivered to her under seal last month, but has been stonewalled every step of the way. As Huvelle's order notes, PPD-6 has already been "widely circulated" within the Executive branch.

As one example, lower-level staff members at State and USAID used the PPD-6 during their preparation of the First Quadrennial Diplomacy and Development Review. [...] The team responsible for that review... included QDDR senior leadership, a fourteen-member executive council, four drafters and editors, and a QDDR leadership team of at least twenty people from the Departments of State and Defense, the USAID, and the Millennium Challenge Corporation, including an “Office Management Specialist,” several “Staff Assistant[s],” and an advisor serving as a Presidential Management Fellow.

Despite this being passed around to even low-level staffers, the DOJ continues to insist it is exempt from FOIA requests under Exemption 5, which pertains narrowly to "communications between the President and his advisors." Huvelle points out that this exemption has been deployed before, but never in the way the current administration is attempting to.

As noted, no case has addressed this privilege in terms of a presidential directive. Rather, courts have considered the application of the presidential communications privilege to audio recordings of confidential communications between the President and his advisers, deliberative documents created by White House advisers, but never viewed by the President, agency documents created to advise, but never reaching, the Office of the President, and advisory documents from an agency that were not solicited, but were received, by the President.

But never before has a court had to consider whether the privilege protects from disclosure under FOIA a final, non-classified, presidential directive that has been distributed widely within the Executive Branch and serves as guidance for several policy-making bodies, including twenty-two Executive Branch agencies, as well as the NSS and National Security Council (“NSC”) Deputies and Principals.

Huvelle refers to the DOJ's claim of executive privilege as "amorphous" and that this assertion relies "solely on the broad, undifferentiated claim of public interest in the confidentiality of the document." According to Huvelle, the DOJ is simply making it up as it goes along. It says the document was distributed on a "need to know" basis, but evidence exists that any staffers' "need to know" was determined ad hoc by other staffers in the various offices the order was distributed to.

More damning (but less surprising), the judge had some harsh words for the administration itself.

The judge also suggested the administration had lost sight of the purposes of the Freedom of Information Act and transparency itself.

"The government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight ... to engage in what is in effect governance by 'secret law,'" Huvelle said.

This administration has shown over the years that it can keep up with the previous regime in terms of secrecy and obfuscation. In some cases, it has even surpassed it. Despite the growing body of evidence to the contrary, the administration still attempts to portray itself as an ambassador of openness -- a new watershed in governance. But there's nothing going on here that distinguishes it from Bush's two terms, or Nixon's truncated stay in the White House for that matter.

Show Public Doc (PDF)Show Public Doc (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: barack obama, doj, executive privilege, foia, foreign aid directive, global aid

25 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 31 Dec 2013 @ 8:20am

There is /one/ difference actually
But there's nothing going on here that distinguishes it from Bush's two terms, or Nixon's truncated stay in the White House for that matter.

As far as I know, neither Bush or Nixon had the gall to constantly go on and on about how 'transparent' they were while they were lying and obfuscating their actions, they just did them.

Claiming to be 'the most transparent administration in history' while striving for such secrecy that Bush and Nixon look like amateurs in the field of lying to and hiding things from the public, that's either a really nasty sense of humor at the public's expense, or a near legendary level of self-delusion.
[ link to this | view in thread ]
Jerrymiah, 31 Dec 2013 @ 10:47am

DOJ
Leave it to Eric the Nazi to act that way. He has absolutely no regards for the US courts system unless they agree with him and then goes on to claim that administration is the most transparent in history.
[ link to this | view in thread ]
kenichi tanaka (profile), 31 Dec 2013 @ 10:52am

Doesn't everyone realize what's going on? Obama is preparing to abolish the U.S. Congress and to set himself up as Dictator of this country.

The TSA, DOJ, FBI, FISA and all of these other agencies are being set up to do just exactly that.

Special thank to every idiot who voted for Obama.
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 10:57am

Re:
Someone says that about every President. I'll believe it when it happens.
[ link to this | view in thread ]
John Fenderson (profile), 31 Dec 2013 @ 11:00am

Re:
That's a stretch. The same claim has been made about every President from at least the 20th century, in some cases with a whole lot more justification.

The reality is that even if a President wanted to do such a thing, it would be extraordinarily difficult. The first thing he'd have to do is actually get rid of the Constitution. The instant that happens will be the instant a full-fledged civil war begins.
[ link to this | view in thread ]
Mike Masnick (profile), 31 Dec 2013 @ 11:05am

Re:
Doesn't everyone realize what's going on? Obama is preparing to abolish the U.S. Congress and to set himself up as Dictator of this country.

That's insane. There is no indication of anything even remotely like that happening.

The TSA, DOJ, FBI, FISA and all of these other agencies are being set up to do just exactly that.

Special thank to every idiot who voted for Obama.

You don't think that the same situation would be happening if a Republican were voted in? This is not about Obama. This is about the nature of power in DC.
[ link to this | view in thread ]
Rikuo (profile), 31 Dec 2013 @ 11:25am

Re: Re:
I doubt it myself. If there's one thing the Star Wars prequels have taught me, it's that if you want absolute power, never outright abolish the democracy. The stupidest move Palpatine made was declaring himself Emperor - that only set off the rebel movement. If he'd instead stepped down from public office, he would have retained the ability to control things from the shadows and no-one would have known or been able to do anything about it.
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 11:29am

Re: Re:
Not to mention that doing so increases the odds of just one of his Secret Service agent deciding the morally right thing to do is to go Praetorian guard on said president before he starts a civil war in a deranged power-grab? Let alone if there is a near consensus of "he has gone beyond the pale" suddenly freak accidents happen.
[ link to this | view in thread ]
Rekrul, 31 Dec 2013 @ 11:30am

Nobody ever bothered to tell Obama that his job title was "president" and not "king".
[ link to this | view in thread ]
Oblate (profile), 31 Dec 2013 @ 11:31am

The team responsible for that review... included QDDR senior leadership, a fourteen-member executive council, four drafters and editors, and a QDDR leadership team of at least twenty people from the Departments of State and Defense, the USAID, and the Millennium Challenge Corporation, including an �Office Management Specialist,� several �Staff Assistant[s],� and an advisor serving as a Presidential Management Fellow.

So it's already been distributed to over 40 people, probably well over. Has Judge Huvelle looked for this document on Google yet?
[ link to this | view in thread ]
lucidrenegade (profile), 31 Dec 2013 @ 11:55am

So, what is the next step the judge can take? Hold Holder in contempt of court and throw him in jail? I'm genuinely curious.
[ link to this | view in thread ]
Rikuo (profile), 31 Dec 2013 @ 12:28pm

Re: Re: Re:
...who are you and how did you hack my secret plans to assassinate Obummer?
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 12:47pm

Obama Thinks He's The Pope!
I think I've figured it out. Our wonderful President, during the execution of his office duties (and maybe other times), has come to the conclusion that he's infallible, like the Pope, and can do no wrong. Where's the lightning when you need it?
[ link to this | view in thread ]
trinsic, 31 Dec 2013 @ 12:49pm

Re:
Do you actually think we have a electoral system that is in the hands of the people? History has shown that both sides are playing the same corrupt gaming of serving special interests. The rest of the political groups are excluded from the process.
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 12:53pm

Re: Re:
Which, my dear Michael, is NOT inconsistent with Obama trying to pull an Adolf on us. He'll probably fail, though, at least I hope so.
[ link to this | view in thread ]
ltlw0lf (profile), 31 Dec 2013 @ 1:03pm

Re: Re: Re:
If he'd instead stepped down from public office, he would have retained the ability to control things from the shadows and no-one would have known or been able to do anything about it.

How do you know that hasn't happened? Both parties seem to be doing exactly the same thing it is almost like they are both being controlled by something else. [/tinfoilcap]
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 1:06pm

Re:
Make that "Pope", as in infallible.
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 1:09pm

Re:
Actually just did. No PPD6, of course, but lots of PowerPoint slide sets describing it. Interesting stuff.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 31 Dec 2013 @ 2:42pm

Re: Re: @ Mike "That's insane." Masnick.
Mike sez: "That's insane. There is no indication of anything even remotely like that happening." -- Just use The Google for "Obama dictator". You're back to pro-Establishment and trying to triangulate us into D's and R's. The NDAA with sweeping powers of indefinite detention without charge, or Obama directly claiming power to assassinate anyone in the world without the least judicicial oversight before or after are definitely dicatator level. -- And THEN you blithely agree that Obama is a dictator but think it's okay because "the same situation would be happening" if a "Republican" were in office! (You even omitted irony quotes as if there's more than one party.) But how the HELL does another potential dictator NOT make Obama an ACTUAL dictator?

Your objection and characterization there are wacky. Sure, it's true that it's the DC power grab (not a game, kid), but why are you at all defending the current dictator, Obama? Playing the DC power "game" yourself, or think that you are?
Mike's re-writing relies so heavily on "old mainstream media" that he's quite undistinguished.

10:41:26[l-682-8]
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 31 Dec 2013 @ 2:45pm

Re: Re: Re: @ AC: Nice and concise retort: I could have skipped mine!
Might have if read down before choking on Mike's notion that it's okay so long as we have a choice of D or R style dictators.
"New media" outlets are just like "old media" outlets except that aren't yet known to be Establishment outlets, but that's the way to bet. Don't trust anything you read.

10:45:08[l-026-8]
[ link to this | view in thread ]
Anonymous Coward, 31 Dec 2013 @ 2:47pm

More secrets being kept from the American people, by an opaque government that claims to be acting in their best interests.

What was it the NSA defenders say so often? "If you've got nothing to hide, then you have nothing to fear".

I wonder what the US Government's fears are, because they're hiding an awful lot from the American people.
[ link to this | view in thread ]
That One Guy (profile), 31 Dec 2013 @ 5:49pm

Re:
If you really think, after all that's been exposed and made public, that the source of the the problems is Obama... well, I can only say that is quite the impressive set of blinders you've got there.
[ link to this | view in thread ]
Matthew Cline (profile), 31 Dec 2013 @ 5:53pm

So, according to this theory, all the President has to do is only ever directly communicate with his advisors, and have his advisors redistribute all communications to their ultimate destinations, and then everything the President does is covered by Exemption 5, and thus nothing the President does can be requested via FOIA.
[ link to this | view in thread ]
Kronomex, 1 Jan 2014 @ 1:51pm

"Do as I say, not as I do."
[ link to this | view in thread ]
Pragmatic, 3 Jan 2014 @ 9:00am

Re: Re:
If he couldn't even stop a government shutdown, good luck with that. All these overblown claims against Obama are racist in origin, the basic idea that, if "they" aren't kept in their place, anarchy will ensue. Am I the only one who knows about the Civil Rights movement and the rhetoric that was flying around then? And that was just for desegregation. Now that we have a Black president, the racists are freaking out.

Not that I'm a fan of Obama. The man is a spineless corporate shill who has forgotten that he used to be a Constitutional lawyer.

All I'm saying is, if you're going to attack him, attack him for that. Unless you're doing the same thing...
[ link to this | view in thread ]