'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.

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

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25 Comments
That One Guy (profile) says:

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.

John Fenderson (profile) says:

Re: 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.

Rikuo (profile) says:

Re: 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.

ltlw0lf (profile) says:

Re: 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]

Anonymous Coward says:

Re: 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.

Pragmatic says:

Re: 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…

Mike Masnick (profile) says:

Re: 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.

out_of_the_blue says:

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]

out_of_the_blue says:

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]

Oblate (profile) says:

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?

Anonymous Coward says:

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.

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