Obama's Rule of Law
The politicization of the Freedom of Information Act.
By Andrew C. McCarthy
Remember all those sermons about "restoring the rule of law," a condition from which we supposedly deviated during the Bush administration? Remember how committed President Obama, Attorney General Holder, and the new administration were to ensuring that justice is not "politicized"? Fine words, but today the Obama administration is engaged in a blatantly politicized enforcement of the Freedom of Information Act.
It is bad enough that the administration's selective mining of the statute flouts both FOIA and the rule of law. What is worse is the objective of this sleight of hand: to present the American people with a skewed perspective of a CIA interrogation program that saved lives and helped keep our citizens safe from additional terrorist attacks after 9/11 — a fact attested to by top intelligence officials from administrations of both parties. President Obama is manipulating FOIA in a way that reveals — to our enemies and everyone else — sensitive details of the interrogation tactics that were used by the CIA, while at the same time denying the American people a chance to assess the vital information produced by those tactics.
On April 16, President Obama ordered the release of various legal memoranda regarding the interrogation program. The memoranda were redacted. Other relevant documents, such as a 2005 CIA "effectiveness memo" that recounted how the program thwarted terrorist plots, were kept under wraps. This information suppression was calculated to make sure only one side of the story could be told: the side portraying the American response to terrorist atrocities in the worst light.
In truth, Obama's gambit was largely unsuccessful. Even as redacted, the memoranda clearly demonstrate the care taken by Bush-administration officials and the CIA to remain within the bounds of the law throughout the interrogation of high-level al-Qaeda detainees. Nevertheless, between the misleading method of the disclosure and the comments of the president and his subordinates, the public has been encouraged to believe the fiction that prisoners were tortured and the interrogation tactics were unproductive.
Former vice president Dick Cheney responded by calling for the declassification and disclosure of government documents describing the effectiveness of the program. Despite its rhetoric about accountability and transparency, the Obama administration declined to reveal this information to the public voluntarily. Consequently, Cheney filed a request under the Freedom of Information Act (Section 552 of Title 5, U.S. Code), seeking to compel disclosure.
On May 7, 2009, the CIA's information and privacy coordinator, an executive-branch employee, denied Cheney's FOIA request. Remarkably, the administration's position is that the documents sought are excluded from declassification because they "contain information that is the subject of pending litigation." Two pending cases were cited: Bloche v. Department of Defense and Amnesty International v. Central Intelligence Agency. A review of these cases underscores that the Obama administration is playing crass politics.
The Bloche case (No. 07-2050) was filed in the District of Columbia two years ago. As the presiding judge has explained, "This case arises from a series of [FOIA] . . . requests made by plaintiffs to various federal agencies. . . . In these requests, plaintiffs seek 'to compel the defendants to release records relating to the participation of doctors and other healthcare professionals in the interrogation of military prisoners and individuals detained by the United States government on the basis of alleged terrorist activities.'"
The Amnesty International case, which is pending in the Southern District of New York, also was filed in 2007. According to the complaint, Amnesty is seeking a broad array of information related to the rendition and interrogation of high-value terrorist detainees.
Obviously, the redacted memoranda that President Obama released on April 16 were every bit as much "the subject of pending FOIA litigation" as is the information that the Obama administration now is suppressing. The government could have withheld all the information, but there is no reason — other than politics — to disclose some of it while withholding the rest.
This is not "the rule of law." It is the whim of the administration in the service of an ideological agenda. It is the opposite of transparency. Worse, it is the brute politicization of FOIA, the judicial process, and our national security.
As President Bush stated in September 2006, the interrogation program
played a critical role in helping us understand the enemy we face in this war. Terrorists in this program have painted a picture of al-Qaeda's structure and financing, and communications and logistics. They identified al-Qaeda's travel routes and safe havens, and explained how al-Qaeda's senior leadership communicates with its operatives in places like Iraq. They provided information that allows us — that has allowed us to make sense of documents and computer records that we have seized in terrorist raids. They've identified voices in recordings of intercepted calls, and helped us understand the meaning of potentially critical terrorist communications. The information we get from these detainees is corroborated by intelligence, and we've received — that we've received from other sources — and together this intelligence has helped us connect the dots and stop attacks before they occur. Information from the terrorists questioned in this program helped unravel plots and terrorist cells in Europe and in other places. It's helped our allies protect their people from deadly enemies.
It is wrong to keep this part of the story under wraps. The president already has released the information that compromised our tactics. He should now disclose the information our intelligence community obtained by using those tactics. Then Americans can judge the value of the program based on all the relevant facts. Our national security demands nothing less.
— National Review's Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
Obama’s Rule of Law by Andrew C. McCarthy on National Review Online (14 May 2009)
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