In April of 2012, Matt Ehling, President of Public Record Media, LLC, made a formal request under the Freedom of Information Act (FOIA) to the Obama Administration's Office of Legal Counsel (OLC), which is part of the Department of Justice (DOJ). Ehling requested the administration's legal opinions and notes about subsections 1021 and 1022 of the 2012 National Defense Authorization Act, which are the parts of the NDAA involved in much public controversy and litigation since 2001. The FOIA mandates the OLC respond within twenty days.
At first, the OLC said they would not respond in the time period allowed because of all the other requests for information made to them, but would reply as soon as possible. Ehling asked how long that might be. They said maybe in a few months, but couldn't guarantee it. When questioned further, the OLC refused to comply with the FOIA at all. They said they were exempt, citing the administration's opinions were “protected by the deliberative process privilege”, and “not appropriate for discretional release”. On the surface, these two excuses seem more plausible than “We're too busy”, but on closer inspection, this claim also violates the FOIA.
Exemptions to the FOIA are specific. To qualify as an exemption, the material must be both “deliberative” and “pre-decisional”. The deliberative process is similar to private conversations protected under attorney-client privilege in a court case. Pre-decisional refers to discussions which take place before a case is concluded or a law is enacted. However, Ehling only requested post-decisional information, that is, material after the NDAA was passed, material which determines how the law will be carried out. Therefore, since the information requested was not both deliberative and pre-decisional, the OLC's objection is invalid. As OLC attorneys specialize in this area of law, they knew this all along.
The OLC also claims that material in the 2012 NDAA subsections 1021 and 1022 is not appropriate for release. Under those two subsections, President Obama and all future presidents can accuse anyone of being a terrorist, incarcerate them, deny them trial, forbid them access to council and send them to a foreign prison. It is not only appropriate, but essential that U.S. citizens and anyone visiting this country know how the government plans to use this law. That the government is forbidden from developing “secret laws” has been upheld in court.
What is so damning in the Obama administration files that the OLC is willing to violate the law to hide them? They must obey the law, specifically, the FOIA.
As Obama's Department of Justice has frequently refused to comply with legally binding requests for information, other questions comes to mind.
Does the DOJ consider the concept of obeying the law tiresome? Do they consider themselves above the law? Since the crafters of the NDAA seem to consider the Constitution an annoyance, this would be consistent behavior.
–by Ed R. Green
Justice Department Refuses to Release Interpretation of NDAA