Ducking Transparency

Tuesday, June 17th, 2008

A federal judge helps the White House cover up the circumstances of how it lost millions of emails:

A federal judge ruled Monday that a White House office that has records about millions of possibly missing e-mails does not have to make them public.

U.S. District Judge Colleen Kollar-Kotelly says the Office of Administration is not subject to the Freedom of Information Act, enabling the White House to maintain the secrecy of a lengthy internal paper trail about its problem-plagued e-mail system.

The decision came in a lawsuit filed against the administration by Citizens for Responsibility and Ethics in Washington, a private group that has been trying to find out the extent of the White House’s e- mail problems for more than a year.

The functions of the Office of Administration “are strictly administrative,” Kollar-Kotelly ruled.

Kollar-Kotelly said the Office of Administration has no authority over others in the executive branch and that the office is exclusively dedicated to providing services to the Executive Office of the President.

Since its creation in 1978, the Office of Administration has responded to FOIA requests. But the Bush White House reversed that policy in August 2007 in the lawsuit filed by CREW.

Just so we’re clear, here: The purpose of FOIA is to make the federal government more accountable and transparent. For 30 years, the Office of Administration has been subject to FOIA. But once they discovered that the Office of Administration may have paperwork showing how or why the Bush administration was able to dispose of millions of possibly incriminating emails, they decided the office was no longer subject to FOIA. And a federal judge has now agreed, because the office is “strictly administrative” in function, even if it has information that could show wrongdoing on the part of non-administrative officials in the executive?

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22 Responses to “Ducking Transparency”

  1. #1 |  Dave Krueger | 

    Wait. You mean there’s a department in the Federal government that’s allowed to just make up the rules as it goes along?

    Surely when the Democrats take over the White House, they will turn this around, expose the truth, and bring integrity back to Washington…

  2. #2 |  Mike Leatherwood | 

    I am sure I speak for a number here when I say, “W…T…F…???”

  3. #3 |  Nando | 

    Well, I can only say this will be challenged and might make it to the SC. In that case, I can see a 5-4 vote going either way, depending on Justice Kennedy’s view. Who knows, he sided with the Gitmo detainees, maybe he’d side with the people on this issue, too.

  4. #4 |  Lior | 

    Just to be clear on this: the Court says that by spawning a separate “Federal Archival Agency” which will keep the records of all the other government agencies without directly interacting with the public, the government can completely avoid the FOIA?

  5. #5 |  seeker6079 | 

    All right, I need to understand this…

    Subpoenaing a president and his secret service agents to find out whether or not he got a hummer outside of his marriage is a valid area of inquiry; the courts will enforce the right to know.

    A White House agency which deals with emails is not validly the subject of public inquiries regarding to emails to which the public is entitled. The courts will not enforce the public’s right to know about matters which directly deal with government activities and potential wrongdoing.

    The wonderful world of conservative jurisprudence. I think that the next President should appoint a shitload of federal judges just to balance things out.

  6. #6 |  seeker6079 | 

    This is fun! I can rob a bank, but if my secretary drives me they can’t put her before the grand jury! She’s purely administrative!

    Wait, what was that? It only applies to massive criminality perpetrated by the executive branch of the United States government? Oh.

  7. #7 |  Windypundit | 

    To be fair, this is an FOIA request, not a criminal investigation. Presumably the Office of Administration would still have to respond to a subpoena from a special prosecutor.

  8. #8 |  Dave Krueger | 

    #7 Windypundit

    To be fair, this is an FOIA request, not a criminal investigation. Presumably the Office of Administration would still have to respond to a subpoena from a special prosecutor.

    Denying the FOIA request is how they keep people from finding out embarrassing stuff that eventually escalates into a subpoena from a special prosecutor.

  9. #9 |  seeker6079 | 

    Yessssss, WindyPundit. The Bush administration has shown itself remarkably forthcoming on all requests for information, even when backed by subpoena. /sarcasm

    Basically it’s responses have boiled down to:
    - No.
    - Make me.
    - Now that you’ve made me, No. It’s privileged.
    - Now that you’ve made me, No. I’ve lost it.
    - The matter should now pass to the AG.
    - The AG: No.
    - The AG: Make me.

    Lather, rinse, repeat.

  10. #10 |  Mojotron3000 | 

    seeker6079, you’re also forgetting about the time they [redacted] the [redacted] [redacted]. But that was in the name of [redacted] of course.

  11. #11 |  Windypundit | 

    When you write things like “This is fun! I can rob a bank, but if my secretary drives me they can’t put her before the grand jury! She’s purely administrative!” you’re implying that refusing an FOIA request is the same as refusing to cooperate with a criminal investigation, when it’s nowhere near that serious.

    If you are involved in a lawsuit, the other side has broad discovery powers to request lawsuit-related documents from you. But they’d have to ask you directly (or your attorney). They couldn’t serve your secretary with a discovery request for your documents just because she files them for you, nor could they serve your landlord with a request for those documents because he has a key to your office. They’re still your documents, and only you can turn them over.

    On the other hand, they can serve your bank with requests for documents related to your account, because those documents are about bank business. Unlike your secretary, the bank isn’t just holding them for you.

    This suit was about whether the Office of Administration is more like your bank or your secretary. The judge apparently thinks it’s more like your secretary.

    I have no idea if that’s the right decision. And like everyone else here, I’m disturbed by the incredible increase in secrecy by the Bush administration, even excluding war-related materials. But this is a separate and less serious issue than Bush administration resistance to a criminal investigation.

  12. #12 |  Jim Lippard | 

    “you’re implying that refusing an FOIA request is the same as refusing to cooperate with a criminal investigation, when it’s nowhere near that serious”

    It’s still the government refusing to comply with the law. How is that not serious?

  13. #13 |  Windypundit | 

    It’s somewhat serious, but the Freedom of Information Act is not a criminal law. If a government agency doesn’t obey the rules, you can sue them in court. But you can’t file criminal charges. The worst that will happen to the agency is that the court will force them to disclose the records. No one goes to jail for refusing to cooperate with a FOIA request as far as I know.

  14. #14 |  seeker6079 | 

    WindyPundit:
    You make a sound legal point regarding the proper recipient of what is comparable to a discovery request. I think, however, that it fails to address the fact of the alleged attempts to hide or destroy the information/evidence at issue.

    To stick with your example, the situation is more comparable to me being subpoenaed, stating that I no longer have the emails, then my opponent subpoenaing my techie who can find the emails or, alternatively, what happened to them. One judge might grant such a request and another refuse it but it remains a valid line of inquiry, especially where there is suspicion that I am concealing or actively destroying emails which are the proper subject of a discovery (FOIA) request. Normal litigation? They can’t ask my secretary techie. Litigation where the court has evidence to suspect that I’m not conducting myself ethically or legally? They can ask my secretary or techie. I don’t think there is anyone here who is arguing that the situation of the missing emails and destroyed hard drives doesn’t fail the sniff test necessitating a wider order. The only consolation is that this judge doesn’t seem to be a toady for power the way that, say, Scalia, Alito or Sentelle are.

  15. #15 |  seeker6079 | 

    No one goes to jail for refusing to cooperate with a FOIA request as far as I know.

    Maybe it’s time.

  16. #16 |  Nick T | 

    Windypundit,

    Make less sense, please. So because a government agency can only be sued rather than prosecuted for criminal acts, any investigation involving what they did wrong is less serious, even though what they did may have actually been a crime? So the acts can be the same but because the legal recourse is different in a technical way, the acts are now different as well? Wow.

    Of course, not only is that illogical, its premises are factually inaccurate. Government officials can be prosecuted for crimes. Yes you can not prosecute “the Office of the Attorney general” but you can prosecute Alberto Gonzalez. So, then what exactly are you talking about?

    “you’re implying that refusing an FOIA request is the same as refusing to cooperate with a criminal investigation…”

    Umm, that’s cuz it IS the same in this case. Do you doubt that there are serious questions as to whether Bush broke the law in a level that rises to criminal behavior? Or to the level of impeachment (which is essentially a criminal investigation, cuz, it says so in the Constitution)? Do you think these emails are all, completely and 100%, unrelated ot those issues. Bush or at least someone in his office committed the *crime* of wire-tapping american citizens without a warrant. These emails could shed light on that issue, which some people are investigating, by not turning them over – say it with me now – they are not cooperating with an investigation into a criminal act.

    Or does the investigator have to be a government official who can bring criminal charges for it to be a “criminal investigation” which is a techincality you have created and are seeking to apply retro-actively to the actual meaningfulness of what’s at steak.

  17. #17 |  seeker6079 | 

    Nick T, I don’t think that WindyPundit is being a contrary cuss. He is making, to my eye, two main points, each valid in and of themselves:

    – FOIA is a civil / administrative procedure, not a criminal one. Therefore any FOIA breaches are not analogous to the criminal law. Others have pointed out the role of FOIA in discovering criminal breaches, but that does not undercut WP’s completely valid technical point. There is, as well, a moral point under it: if we are to retain the criminal law as the most serious sanction for the most serious wrongdoing then we can’t blithely compare lower wrongdoing to it. Whether the watchdog of FOIA should be given sharper teeth or a shorter leash to the coppers of criminal wrongdoing is a separate question. I personally believe that it should, for a large number of reasons. But it ain’t there yet.

    – An FOIA request is far more analogous to a request for documentary discovery in a civil lawsuit than it is to a subpoena in a criminal one; I made (in jest) that stretched comparison and was correctly called on it by WP. (However, there is a point where deliberate breaches of the obligations of civil discovery can lead to civil sanction or even criminal consequences, but we haven’t addressed that directly here.) And, like documentary discovery, an issue often arises as to who is the correct recipient of a request for documentation. This judge has decided that this particular government department isn’t. She may be right in American law, I don’t know. I personally think that the spoliation issue raised by the Bushies destroying materials that they are legally required to retain trumps that administrative issue, but I don’t know whether the law agrees with my perception of what should be so.

    In short, I don’t think WP is being a dick. I think he’s being accurate and clear on the technical matters at issue. (If you become too disdainful about the Hows of the Law it also leads to sloppy morality on the Whats.) I also think that there are wider issues and implications that he has chosen not to address, but that’s cool. He’s making a point, not submitting a brief. There are many, many dickheads on the internet and I just don’t think he is playing one here.

  18. #18 |  seeker6079 | 

    Let us assume that the judge was correct and Office of Administration is not subject to the Freedom of Information Act. It seems clear that the Congress should immediately amend the law to make it subject to FOIA: the White House agency which deals with emails must be made responsible, at the very least in the area of the maintenance and integrity of the documents. To do otherwise is to take out of the information stream the one agency which actually knows (or is obliged to know) where all the data and storage media were, are and will be.

  19. #19 |  seeker6079 | 

    There are many, many dickheads on the internet and I just don’t think he is playing one here.

    Did I mention that I am aware of all internet traditions? You should be too!

  20. #20 |  Nick T | 

    seeker,

    I’m not trying to say he was a dickhead, or being deliberately contrary, I’m saying what he said made no sense and was wrong.

    You say that he wasn’t submitting a brief and so his argument will not be 100% accurate or complete or whatever, but let’ snot forget that his remarks, the ones that I chose to criticize, were themselves critical of YOUR satirical remark about hyour, presumably fictitious, secretary. He said that comparison was unfair becuase it *likened* this issue with not cooperating with a criminal investigation. My point was that they are very similar because of the issues of intent and morality, and even more specifically, in light of that fact that both are efforts, almost surely, to conceal evidence of *actual **criminal** conduct*.

    Windypundit, at first stated the technical difference in the law, but then went on to state that they are “nowehere near the same thing.” I would point you to the the three factors I just mentioned compared with the only distinction you or windypundit can note, technial legal differences. If you think technical legal differences outweigh all of the other substantive similarities between what Bush is doing here and someone refusing to cooperate with a criminal investigation to the point of making them “nowhere near the same thing” then that’s just bonkers.

    Again, I’m not saying there *isn’t* a technical legal difference, I’m saying that that diffence does not per se change the moral dimensions of what is happening, and therefore leaves your original satirical analogy a very good one, and windypundit arguing a distinction without a difference.

  21. #21 |  seeker6079 | 

    about your, presumably fictitious, secretary.

    Yessss. (Looks nervous.) Fictitious. That’s right.

  22. #22 |  seeker6079 | 

    Again, I’m not saying there *isn’t* a technical legal difference, I’m saying that that diffence does not per se change the moral dimensions of what is happening, and therefore leaves your original satirical analogy a very good one, and windypundit arguing a distinction without a difference.

    Agreed, especially regarding the moral dimension, with the parameters on legal matters that I set out above. I’m wary of writing certain things off as “technicalities”, though. A technicality is used by some folks (not you presumably) to mean “a legal requirement that I don’t like or prevents law enforcement from taking a short cut”.

    Which of course leads us to another problem: who watches the watchers? The AG under Bush has become a GOP subsidiary; it many ways it is no longer a valid law enforcement department. It is in that context that we must examine the FOIA request and determine whether it is to be taken further through other channels.

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