White House Wins in FOIA Email Case

Radley Balko | June 17, 2008

A federal judge gives the White House cover in hiding 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, the White House conveniently decided the office was no longer subject to FOIA.

And a federal judge has now agreed, ruling that because the office is "strictly administrative" in function it can ignore FOIA requests, even if it has information that could show wrongdoing on the part of officials in the executive. 

Comments

ktc2|6.17.08 @ 9:06AM|#

Is anyone really surprised at this point?

The judiciary has become but a puppet.

|6.17.08 @ 9:10AM|#

There's not really much point in gathering more evidence of this administration's corruption and incompetence. There's already enough publicly known to have Bush and Cheney impeached and removed with extreme prejudice.

What's lacking isn't information, but will, both on the part of pusilanimous Dem leadership and GOP "dead-enders" who no evidence could convince.

Guy Montag|6.17.08 @ 9:17AM|#

Just to make it a little more clear, this applies to the Office of Administration no matter who the Executive is and should have applied the whole time.

Administrators in years past, who released information due to FOIA requests may have been advising their elected and appointed officials incorrectly if they indicated that they must comply.

That said, it is highly unlikely that any past Administration Office will be heald accountable for their errors.

Guy Montag|6.17.08 @ 9:18AM|#

The judiciary has become but a puppet.

Yea, we saw that with the Habeas Corpus ruling on Guantanimo Bay, right?

avocado diaboli|6.17.08 @ 9:20AM|#

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.

The purpose and the actual text of the law may not be the same thing. If the text restricts the scope of the law such that it does not apply to administrative agencies, then the ruling is correct, even if we would like the text to apply to this agency.

As for the argument that they'd done it for 30 years, so they should keep on doing it, that doesn't follow. It's possible that they were doing more than was required by law.

For example, if I refrain from making a right turn on red for the first 30 years of my driving career, and then decide I'm going to start turning right on red, a cop can't pull me over and write me a ticket because I changed my policy.

Guy Montag|6.17.08 @ 9:23AM|#

avocado diaboli,

Very good points.

The Executive is free to remove all classifications and release any information that they like. FOIA only tells the Executive that they must release certain information, whether they like it or not. They can always release more.

|6.17.08 @ 9:25AM|#

Of course the dont, the Federal Judge is in someones back pocket, bought and paid for. Everything nicely swept under the rug and the American shheple hand fed a line of BS. ANother day in Bushes Regime.

JT
http://www.FireMe.To/udi

appending_doom|6.17.08 @ 9:32AM|#

From the definitions section and excerpt from the U.S. Code.

"(1) "agency" means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include-
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;"

"(3)
(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, and except as provided in subparagraph (E), each agency, upon any request for records which
(i) reasonably describes such records and
(ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person."

Discuss.

Guy Montag|6.17.08 @ 9:36AM|#

appending_doom,

Seems the court was using the odds and ends that you left out from your post.

Need more information, but will be glad to look it up myself later.

ktc2|6.17.08 @ 9:53AM|#

Guy,

The Habeas Corpus ruling is really pointless. As the tyrant's best friend Scalia pointed out it just means we'll never know about any future "prisoners". It just "sounds good" but the effect will do nothing for liberty or justice.

|6.17.08 @ 9:59AM|#

Son Of A Bitch!

|6.17.08 @ 10:00AM|#

Another reason to vote for a Democrat this year.* Hey Mr Straight Talk, what's your take on this?

* I despise a whole lot most of the Democratic party platform. I despise Chavez/Putin style governance even more.

|6.17.08 @ 10:00AM|#

As the tyrant's best friend Scalia pointed out it just means we'll never know about any future "prisoners". It just "sounds good" but the effect will do nothing for liberty or justice.

I think that's certainly a likely outcome, but it may have more to do with the nature of warfare against illegal combatants than with the overweening eevil of the Bushbots and the homicidal psychopaths in the military.

|6.17.08 @ 10:01AM|#

Guy,

What few informative accounts I've read this morning do suggest the decision hinged on whether the OA is an "agency" as defined in the act. As ars technica points out, for example, White House house-keepers are not subject to FOIA. The argument was that OA just provided clerical services but did not make any sort of policy, hence it is closer to house-keeping than, say, to the DEA.

Anon

ktc2|6.17.08 @ 10:06AM|#

So yeah, like I said it was just PR.

Net real world effect = zero (or worse).

Abdul|6.17.08 @ 10:15AM|#

Court's opinion is here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv0964-54

Big money stuff comes at page 17 and from thereon.

Seems like a straight-foward application of law and not more evidence that federal judges are allowing Bush to destroy civilization as we know it.

As for the OA complying with FOIA for 30 years, they had a history of telling requesters that they complied out of discretion and not because they were required to do so.

Guy Montag|6.17.08 @ 10:15AM|#

Another reason to vote for a Democrat this year.*

Yes,because FBI files really belong in the First ladie's office.

Anon,

Good point. Did not notice that angle from the information given.

Jim Hacker|6.17.08 @ 10:42AM|#

This is a victory for democracy, and for the people. It shows that the Ministry for Administrative Affairs is doing the work of the people, and that those who do wrongdoing must be held accountable. However, those who do the legitimate day-to-day business of making this a better place for the ordinary people of this great country.

Daniel Webster|6.17.08 @ 10:47AM|#

avocado diaboli-

I also agree, good points.

But, the case for them continuing a policy that has been in effect for 30 years is:

1) Why wait until 2007 to all of a sudden change policy? If this was some core principle, shouldn't they have held to this since the beggining?

2) Yes, the law says they don't have to do it. But this is obviously a decision to reduce transparency. There is no excusing this decision on a political level; they have made a conscious choice toward obscurity.

ktc2|6.17.08 @ 11:07AM|#

"They have made a conscious choice toward obscurity."

LOL.

Where you been the last seven years Mr. Webster? It's more than obscurity, it's deliberate obfuscation of the truth and it's been the SOP of the current executive the whole time.

thoreau|6.17.08 @ 11:35AM|#

Still not as bad as the claim that the VP isn't in the Executive Branch and so isn't subject to Executive Branch rules.

Can we just toss these fuckers onto a plane and ship them to the Hague already? Or Nuremberg? Or, well, just about any damn court at all? I want some orange jumpsuits for these thugs.

thoreau|6.17.08 @ 11:39AM|#

R C-

Just so we're clear: Anybody handed over to the US by an Afghan mercenary with tribal grudges is presumed to be an "illegal combatant," but officials who lie their asses off to invade a country that posed no threat are perfectly lawful?

Fluffy|6.17.08 @ 11:43AM|#

Remember when discussing this case with Guy Montag that the actual legal details of the matter are irrelevant to him.

All that really matters to Guy is that the Bush administration be protected from any evidence of criminal wrongdoing on their part being released. That's it.

Nothing matters to Guy outside of having the delicious taste of W's cock down his throat as much as possible. This is because Guy is a fucking cunt.

|6.17.08 @ 12:13PM|#

You lost me there, thoreau.

As far as my original comment goes, only in a war against illegal combatants would we have any interest in somebody handed over by some Afghan "mercenary" with tribal grudges.

What the habeas corpus case has to do with US officials lying us into war, I couldn't say. Although, on that point, you have heard of the Rockefeller report, right? The one that says the administration's case for war was largely supported by intelligence?

Guy Montag|6.17.08 @ 12:32PM|#

As usual, every time I bother to read a Fluffy post it is full of his emotional bias and ignores the written word.

Back to the usual method.

|6.17.08 @ 1:18PM|#

Can we just toss these fuckers onto a plane and ship them to the Hague already? Or Nuremberg? Or, well, just about any damn court at all? I want some orange jumpsuits for these thugs.

I hope Guantanamo gets cleared out when the next administration takes office, but I want it kept open for the sake of two new prisoners.

You have two guesses.

|6.17.08 @ 1:23PM|#

But, it seems that the judge's decision is the correct one. The law would seem to exclude bodies that have no authority.

And as I hinted before, it won't matter anyway. Short of Bush or Cheney getting caught holding a pistol with the body of a handcuffed US citizen with a gunshot wound to the head in front of him, nothing's going to happen to those guys.

|6.17.08 @ 3:19PM|#

But, it seems that the judge's decision is the correct one.

Only if you care about what the law actually says.

If all mentation stops with the utterance "BUSH BAD!", you're likely to get a different result.

I hope Guantanamo gets cleared out when the next administration takes office, but I want it kept open for the sake of two new prisoners.

Criminalizing policy differences in excellent way to wreck what's left of our civil and political culture.

Again, I encourage anyone who wants to argue "Bush lied" to read the Rockefeller report. You could key-word search for the phrase "substantiated by intelligence", but you'd still be there all day.

Did the intelligence suck? You know it did. Did Bush lie about it? Not much, no. Would you have made different decisions, with the same information in hand that Bush had? Maybe. But that's a policy difference, and is not, and should not be, a crime.

Look, God knows Bush has given us plenty to bitch about, on domestic and foreign policy. I just think our bitching will generally have more credibility if it isn't contradicted by reports from his sworn political enemies.

|6.17.08 @ 3:38PM|#

"As far as my original comment goes, only in a war against illegal combatants would we have any interest in somebody handed over by some Afghan "mercenary" with tribal grudges."

How about people picked up in Bosnia, far away from Iraq or Afghanistan?

Geotpf|6.17.08 @ 3:54PM|#

I'm sure this ruling will be appealed.

|6.17.08 @ 3:55PM|#

OK, I am unclear on a few points:


1) Since when does the White House perform no "true" functions and only act as an administrative branch? Isn't the White House part of the "Executive Branch", as in "execute", as in "to perform or do" or (in our current case) "to murder; assassinate"? There is no portion of our gov't which allows for more power for a small group of people to perform more actions than in the White House. How is this JUST an administrative branch??!?


2) Why is no one recognizing the "strange coincidence" that the information requested via FOIA EXACTLY matches with the times the white house was accused of lying about Iraq details and the Valerie Plame issue. Come on!! When Enron pulled evil shit a decade ago, the laws CHANGED to ensure that no further evil could be performed. Then they were still accused based upon INTENT. When all the music labels complained about internet theft, Kazaa et al. were shut down & laws were CHANGED to address new circumstances. Yet here, even if the lie regarding "administrative office" holds, they are clearly hiding lies UPON THE AMERICAN PEOPLE!! Come on!! Where are all the "president cannot commit perjury" folks who were ready to kick Clinton out of office!! His lies, at worst, messed up a few emotions of a few folks. These lies had us attack an entire COUNTRY!! WTF!!! What the FOIA explicitly states is, to some degree, moot; its intentions were clear: to prevent the government from hiding information from and abusing the people whom it represents. Lying about evidence to start a war & send our kids out to die (and kill myriads of others)... that is as severe an abuse of my trust as it can get!

|6.17.08 @ 5:05PM|#

mike,

The argument is that not the entire Executive Branch, but just the Office of Administration, is not properly an authority and thus not an "agency" for the purposes of FOIA. If this is so, they don't have to release the documents by FOIA.

As for this administration lying and covering up and getting away with it, that's old news. No one who can do anything about it is willing to. The Dems don't want to jeopardize the all-but-certain Dem landslide in November by doing anything to energize the utterly demoralized GOP base.

It's interesting to note, especially to the Gingrich-era GOP bashers out there, that the House Republicans (such as Bob Barr) proceeded with the impeachment of Clinton despite the fact it was unpopular at the time, and even after they lost seats in the 1998 elections. Now you can dispute whether those were impeachable offenses, but you can't claim they were acting out of craven political concerns.

You can't say the same for Pelosi and Reid, who've been sitting on a mountain of evidence far more damning than that against Clinton, but fail to possess the courage and, dare I say, patriotism of the pre-Bush Republicans.

|6.17.08 @ 5:14PM|#

RC Dean,

"The intelligence" was hardly unanimous in the run-up to war. The UN inspectors, Hans Blix, and Mohammed el-Bardei all disputed such assertions.

And before you launch into ad hominems against the UN, you may wish to pause to consider the fact that THEY WERE RIGHT. As much as it pains me to say it, I wish we had listened to the UN, France, Germany, and Russia on this topic back in 2002. And if you don't wish that too, well, I don't know what's wrong with you.

thoreau|6.17.08 @ 5:21PM|#

Chris-

The latest theory I've heard is that some of the cooked intelligence was coming from people with ties to Iran's intelligence service.

I guess it makes a certain amount of sense. Look at their current situation:

-Hostile dictator that they fought a long war against: Gone.
-Sympathetic elements of neighboring population: Now in power.
-Hostile superpower: Too bogged down to do a damn thing. Surrounded by militias and guerrillas sympathetic to Iran.

I don't know if Iranian intelligence officers actually had anything to do with it, but if I were an Iranian intelligence officer I'd at least forge some documents claiming credit for it and show those at my next annual performance review. "What do you mean 'unproductive'? Look at the shit that I tricked Uncle Sam into doing!"

|6.17.08 @ 5:40PM|#

thoreau,

That seems a bit too conspiracy theory-ish to me. Such a plan could have backfired easily. Though it was clear beforehand, for those who were willing to see, that us invading Iraq would help Iran out in the long run (that too, RC).

And when you add in the administration's completely getting played by Ahmed Chalabi, it does make one wonder.

thoreau|6.17.08 @ 5:47PM|#

Chris,

I don't think that it was done entirely at the behest of Iran, but it wouldn't shock me if, upon realizing that this was likely to happen, Iran had some people go and start putting out feelers to try to monitor the situation, while also feeding some misinformation here and there to try to influence events.