President Transparency promised us his administration was ‘committed to operating with an unprecedented level of openness’ regarding FOIA and Open Government.  It seems his Justice Department just didn’t get the memo…

We know now that the DoJ has declined FOIA requests for documents defense attorneys needed for their clients, or even requests for evidence confirming that a person was on Obama’s Approved for Assassination list. The late Anwar al-Awlaki was the poster child for that; other defense attorneys have been denied documents, claiming releasing the information might reveal state secrets.

But apparently the administration was chastised and spanked pretty loudly by US District Judge Cormac Carney when he discovered that he had been lied to about the existence of documents in the case Islamic Shura Council v. FBI.  Jerry Policoff writing at quotes him in the short version of his ruling (pdf):

“Government cannot, under any circumstance, affirmatively mislead the Court.”

Now there’s a thought.  So what is the Unitary Executive’s DoJ to do?  Get the rules re-written.  The new rules would   make it legal to lie to federal judges about investigations involving foreign intelligence, counter-intelligence, or international terrorism, but as Emptywheel shows, it goes even further:

(1) In the event that a component identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the head of the FOIA office of that component must confer with the Office of Information Policy (OIP) to obtain approval to apply the exclusion.

(2) When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component.     (bold mine)

Forcing government agencies to lie; how far can this administration go in subverting the Rule of Law?

Emptywheel relates the timeline she’d posted on the case earlier this year, and concludes:

“So look what the timing makes clear: The government knew Carney wanted to reveal that the government lied to him–but also that it routinely lied to FOIA requesters–in June 2009. But they only issued a rule trying to formalize their practice of lying to FOIA requesters in the days before the 9th ruled, 21 months later. Rather conveniently, the timing of the rule meant the comment period would expire before it became public that the government has been going beyond Glomar and instead lying to FOIA requesters.”

Policoff quotes these organizations’ reactions to the proposed rule changes:

“In a public comment regarding the rule change, the ACLU, along with Citizens for Responsibility and Ethics in Washington (CREW) and, said the move “will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”

Conservative government watchdog Judicial Watch has also lambasted the proposed rules change:

“Upon taking office, President Obama released a memorandum declaring his administration was “committed to operating with an unprecedented level of openness. Specifically, he pledged to bolster the strength of the FOIA act, calling it “the most prominent expression of a profound national commitment to ensuring an open government.”

“How about looking you in the eyes and lying to you?  At least they were good enough to forewarn us, at least we few who pay that much attention.  But I guess we already knew they were liars; just so rare for them to be so unashamedly forthcoming.  As I’ve said before….now in the light of day even.”

~ my friend Robert Alexander Dumas via email, in response to this news

Thanks, Robert.  It’s the perfect response.  This is over-the-top chilling to me.

(cross-posted at