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

from the let-them-eat-redactions dept

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.

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