FAS

Court Rebukes White House Over “Secret Law”

12.18.13 | 4 min read | Text by Steven Aftergood

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-profit Center 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….”

Several significant points emerge from this episode.

First, President Obama’s declared commitment to “creating an unprecedented level of openness in Government” has not been internalized even by the President’s own staff. This latest case of “unbounded” secrecy cannot be blamed on the CIA or an overzealous Justice Department attorney. It is entirely an Obama White House production, based on a White House policy choice.

Second, and relatedly, it has proved to be an error to expect the executive branch to unilaterally impose transparency on itself. To do so is to ignore, or to wish away, the Administration’s own conflicting interests in secrecy and disclosure.  Instead, it is the role of the other branches of government to check the executive and to compel appropriate disclosure.

But that does not happen spontaneously either. In this case, it required a Freedom of Information Act lawsuit to be brought by the Center for Effective Government, which was superbly represented by attorneys Julie Murray and Adina Rosenbaum of Public Citizen.

An official Fact Sheet on PPD-6 (which has not yet been released) is available here.

The Electronic Privacy Information Center is currently pursuing release of another presidential directive, the Bush Administration’s NSPD-54 on cyber security. In October, Judge Beryl Howell unexpectedly ruled that that directive was exempt from disclosure because, she said, it was not an “agency record” that would be subject to the FOIA.  Her opinion came as a surprise and was not persuasive to everyone. In a footnote in yesterday’s ruling, Judge Huvelle said that the arguments over the two directives were sufficiently distinguishable that “this Court need not decide if it will follow Judge Howell’s rationale”– suggesting that if pressed, she might not have done so.  Yesterday, EPIC filed a notice of its intent to appeal the decision.

Coincidentally, the Department of Defense yesterday renewed until January 2015 its guidance implementing Presidential Policy Directive 19 on Protecting Whistleblowers with Access to Classified Information.

(Related stories: Politico, Miami Herald).

Update: The Center for Effective Government issued a statement here.

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