Court Rejects Obama Admin Executive Privilege Arguments

Judge dings admin for ‘cavalier attitude’ toward transparency

December 18, 2013

A federal judge Tuesday rejected the Obama administration’s sweeping claims of executive privilege and ordered the disclosure of a foreign aid directive signed by President Barack Obama in 2010 but never publicly released.

U.S. District Court Judge Ellen Huvelle ruled the presidential order is not within the bounds of executive privilege and called the government’s arguments in favor of secrecy "troubling."

"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,'" Huvelle said.

The Justice Department claimed the Presidential Policy Directive on Global Development—a guidance memo issued to federal agencies in 2010—was covered by executive privilege and restricted to those who "need to know."

However, Huvelle found that "the government has not, even after plaintiff raised the issue ... defined what 'need to know' means."

"Here there is no evidence that the [directive] was intended to be, or has been treated as, a confidential presidential communication," Huvelle wrote.

Huvelle, a Clinton appointee, issued the ruling in response to a Freedom of Information Act lawsuit brought by the Center For Effective Government.

Julie Murray, an attorney with Public Citizen and counsel for the Center for Effective Government in the suit, said in an interview that the case "is going to have important implications for public access to federal policy."

"It represents a rebuke of the government’s attempt to keep presidential policy directives secret, even when the directives—like this one—are publicly touted, have broad application to federal agencies, and are not classified," she said.

The Center for Effective Government originally filed FOIA requests for the directive in 2011 with the State Department and USAID. Both agencies denied the requests and subsequent appeals, prompting the lawsuit.

"We knew that we had somewhat of a unique case with the presidential communications privilege here, and we thought it was fairly unprecedented the way they were trying to claim it," Center for Effective Government’s open government analyst Gavin Baker said in an interview. "Thankfully the judge agreed. We think it could have been a dangerous thing if the privilege had been allowed to grow that way."

"The judge had some very cogent things to say about how FOIA was meant to constrain secret law and ensure government does its business in public so the American people can know about it and debate it," Baker continued. "I was very gratified to see the judge take the same perspective we have. It was a win for transparency."

The Justice Department, which represented the White House in the case, did not immediately respond to a request for comment.