Federal Judge Slaps Down President Obama For Governing By "Secret Law" In Document Disclosure Case

For the second time this week, a federal district court in D.C. has issued a stinging opinion against the Obama administration. On Monday, a federal district court judge appointed by President George W. Bush ruled that the NSA's bulk gathering of telephonic metadata involving the telephone records of all Americans violated the Fourth Amendment's protection against unreasonable searches and seizures. Yesterday, a federal district court judge appointed by former President Bill Clinton ruled that the Obama administration's claim of executive communications privilege in refusing to release a document pertaining to foreign aid amounted to governing by "secret law."

The case involved a single document containing a presidential directive titled "Presidential Policy Development on Global Development" that was widely distributed within the executive branch of government. The White House had released a detailed fact sheet on the document "touting it as a 'first of its kind by a U.S. administration' that 'recognizes that development is vital to U.S. national security and is a strategic, economic, and moral imperative for the United States" and the President had spoken publicly about its contents Judge Ellen Huvelle noted in her opinion. The directive purported to "communicate policy relevant to national security and foreign relations" even though no part of the document was deemed classified or was there a claim of national security made when the Center for Effective Government filed a FOIA request with the State Department seeking its release. Instead, the administration claimed a presidential communications privilege exemption from disclosure when the group made its FOIA request in 2011.

In ruling against the claim of privilege, Judge Huvelle criticized the government for adopting "a 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'" by claiming privilege under an exemption that was only intended for communications with the President's closest advisers. The administration's position conflicted with "the very purpose of FOIA . . . to permit access to official information long shielded unnecessarily from public view." To hold otherwise, she said would allow "no effective limitation on a President's ability to engage in 'secret law.'"