Pruning Shears

U.S. District Court Judge Colleen Kollar-Kotelly ruled this week that the White House’s Office of Administration (OA) does not have to turn over documents relating to the disappearance of potentially millions of emails. Citizens for Responsibility and Ethics in Washington (CREW) had filed a Freedom of Information Act (FOIA) request and in her decision Kollar-Kotelly wrote “the Court concludes that OA is not an agency subject to the FOIA”. CREW plans to appeal.

She acknowledged that until the administration decided otherwise “OA considered itself an agency subject to the FOIA and operated as such.” Why should a decades-long practice under Republican and Democratic administrations alike be so casually disregarded? Considering the reverence for precedents in the judicial system it would seem logical that longstanding conventions elsewhere would be granted some measure of respect. Instead she concludes that even though the OA always considered itself bound by FISA and responded accordingly, all that was required to end this long-running practice was for the current President to order it.

Such logic is fine in the abstract. There are lots of things we’ve done for long periods of time without ever having a formal blessing, and many of them would not stand up to official scrutiny. But principles are not formulated in a vacuum, nor should they be interpreted in one. The lawsuit sought to preserve an area of transparency from the government. The OA is by all accounts not some kind of top secret agency that deals in national security secrets. Releasing documents under FOIA may reveal embarrassing details of incompetence or corruption, and that would certainly be one reason for an administration to want to suppress them. But it also makes it even more important that responsiveness and openness be adhered to.

Consider the source for the lawsuit, too. How has the White House acted regarding routine access of information requests like this, or testimony of top officials, or willingness to share ordinary (but important) details on its decision making methods? It has generally acted with an unrivalled level of opacity. This is a group that does not want what it is doing to be visible to the public. Of course, based on what we have seen from them it appears there is good reason for them to want as little openness as possible, but why on earth would Kollar-Kotelly continue to enable such behavior?

Finally, think about it in simple terms of a turf battle. The judicial branch is confronted with an executive branch that does not respect it. It has relentlessly politicized the Justice Department and attempted to render terms like “voter fraud” and “civil rights” meaningless. It has tried to evade the courts by going to great lengths to stay beyond their jurisdiction - black sites, Guantánamo Bay, extraordinary rendition. (At what point do we start to ask the President what he finds so offensive about American soil?) Now in the wake of Boumediene they are indicating they will attempt to defy a ruling by the Supreme Court itself. Spokesman Tony Fratto said “[t]his was not a slam-dunk by the Supreme Court - this was a deeply divided decision - but there’s no question it has done damage to our ability to protect the country.” Or consider the President’s exchange with Adam Boulton:

BOULTON: But the Supreme Court have just said that — you know, ruled against what you’ve been doing down there.

THE PRESIDENT: But the district court didn’t. And the appellate court didn’t.

BOULTON: The Supreme Court is supreme, isn’t it?

THE PRESIDENT: It is, and I accept their verdict. I don’t agree with their verdict. And it’s not what I was doing down there. This was a law passed by our United States Congress that I worked with the Congress to get passed and sign into law.

BOULTON: But it looked like an attempt to bypass the Constitution, to a certain extent.

THE PRESIDENT: This was a law passed, Adam. We passed a law. Bypassing the Constitution means that we did something outside the bounds of the Constitution. We went to the Congress and got a piece of legislation passed.

Note how he gives weight to the district and appellate court rulings; notice how he emphasizes the law passed by Congress. He will not so much as lift a finger in response to this ruling. He will publicly ignore it and work to undermine it. This is the environment judges are ruling in. It would seem reasonable for them to take such casual contempt for the law by a petitioner into account, but clearly not all of them feel that way. Colleen Kollar-Kotelly, this is the man you deferred to.