Court Rebukes White House Over “Secret Law”

Laws are for the little people. [Link]

DC District Judge Ellen Segal Huvelle yesterday ordered the Obama Administration to release a copy of an unclassified presidential directive, and she said the attempt to withhold it represented an improper exercise of “secret law.”

The Obama White House has a “limitless” view of its authority to withhold presidential communications from the public, she wrote, but that view is wrong.

“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’,” Judge Huvelle wrote in her December 17 opinion.

“The Court finds equally troubling the government’s complementary suggestion that ‘effective’ governance requires that a President’s substantive and non-classified directives to Executive Branch agencies remain concealed from public scrutiny,” she wrote.

Judge Huvelle ordered the Administration to provide the directive to the non-profitCenter for Effective Government, which had filed suit under the Freedom of Information Act for its release.

The directive in question, Presidential Policy Directive (PPD) 6, “is a widely-publicized, non-classified Presidential Policy Directive on issues of foreign aid and development that has been distributed broadly within the Executive Branch and used by recipient agencies to guide decision-making,” the Judge noted. “Even though issued as a directive, the PPD-6 carries the force of law as policy guidance to be implemented by recipient agencies, and it is the functional equivalent of an Executive Order.”

“Never before has a court had to consider whether the [presidential communications] privilege protects from disclosure under FOIA a final, non-classified, presidential directive.”

The Center for Effective Government had argued that “PPD-6 is not protected by the presidential communications privilege because it was not made in the course of making decisions, but instead is the final decision itself….”

In response, the government contended that PPD-6 “is protected by the privilege because, regardless of how widely the document has been distributed within the Executive Branch, it originated with the President….”

Significantly, Judge Huvelle insisted on examining the document herself in camera instead of simply relying on the Administration’s characterization of the document.  Having done so, she found that it “is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.”

She criticized the government for “the unbounded nature” of its claim. “In the government’s view, it can shield from disclosure under FOIA any presidential communication, even those — like the PPD-6 — that carry the force of law, simply because the communication originated with the President…. The Court rejects the government’s limitless approach….”

Most transparent administration EVER. I do not think that means what you think it does.