White House Wins Ruling On E-mail Records 243
An anonymous reader writes "The White House Office of Administration is not required to turn over records about a trove of possibly missing e-mails, a federal judge ruled Monday. The ruling by U.S. District Judge Colleen Kollar-Kotelly found the agency does not have 'substantial independent authority,' so it is not subject to the Freedom of Information Act."
Kollar-Kotelly (Score:2, Informative)
Re:When did this change? (Score:5, Informative)
"Sorry, I'm only the FBI director's SECRETARY. I don't have substantial independent authority."
However, if the "agency" does not have "substantial independent authority" from the Executive, then it is not considered an agency for the purposes of the FOIA, it is considered a unit of the Executive Office.
Here's a 13 year old case that references even older cases supporting that interpretation
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/93opinions/93-5411a.html [georgetown.edu]
Here is a picture of the stupid cunt (Score:0, Informative)
The treasonist whore is whoring out our rights to the highest bidder with the most power.
I hope the twatwad gets hit by a car on the way out of the courthouse.
And yet she stands next to the united states flag which means nothing to her. Perhaps she uses it to wipe her ass after shitting on our constitution?
Re:The Microsoft connection (Score:1, Informative)
Re:When did this change? (Score:5, Informative)
It does not apply to all government entities. The opinion in this case explains the relevant standards:
In 1974, Congress amended the FOIA definition of agency to cover any "establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. 552(f). This definition "was not, however, meant to cover 'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.'" Armstrong, 90 F.3d at 558 (quoting H.R. Rep. No. 93-1380, at 14 (1974) (Conf. Rep.)). Indeed, Congress intended to codify the D.C. Circuit's decision in Soucie. Id. ("That the Congress intended to codify Soucie is clear enough.") (citing Meyer v. Bush, 981 F.2d 1288, 1291 (D.C. Cir. 1993)). Soucie, however, offers two possible tests for determining whether an EOP component is an agency subject to the FOIA: (1) whether the entity exercises "substantial independent authority," and (2) whether the entity's "sole function is to advise and assist the President." Soucie, 448 F.2d at 1073, 1075; see also Armstrong, 90 F.3d at 558. Following the 1974 Amendments to the FOIA, as discussed in greater detail below, the D.C. Circuit considered these two factors in determining whether a variety of EOP components were agencies subject to the FOIA.
In 1993, the D.C. Circuit issued its opinion in Meyer v. Bush, 981 F.2d 1288, which "managed to harmonize" the two Soucie criteria "by using a three-factor test to determine the status under FOIA of a unit in the Executive Office of the President." Armstrong, 90 F.3d at 558. Specifically, the Meyer court determined that, in "apply[ing] Soucie to those who help the President supervise others in the executive branch . . . it is necessary to focus on three interrelated factors . . . [(1)] how close operationally the group is to the President, [(2)] what the nature of its delegation from the President is, and [(3)] whether it has a self-contained structure." 981 F.2d at 1293.
In short, it is well-settled law that some executive entities are not covered by FOIA, and there is significant precedent for making the determination. That's not to say the judge was right or wrong, just that "FOIA applies to all agencies" is not the proper mode of criticism.
Judge Kollar-Kotelly is a Fascist (Score:2, Informative)
You might not know that Kollar-Kotelly ruled in the execution trial of Saddam Hussein that "the United States has no right to interfere with the judicial processes of another nation's courts", when such interference might mean Hussein might live to tell more of what he knows about US interference in Iraq, or rather its lengthy cooperation with his murderous regime.
And you might not realize that Kollar-Kotelly is the presiding judge of the Bush-packed FISA Court [wikipedia.org], that has rubberstamped Bush's regime's tens of thousands of "exceptional" wiretap requests that violate the 4th Amendment (which artificial loophole is the entire purpose of that court). Which is why today's Congressional Republicans are doing everything they can to put telco amnesty for violating FISA under the FISA Court's jurisdiction, instead of a regular court that actually obeys the Constitution.
Kollar-Kotelly is the go-to judge for Unitary Executive [wikipedia.org] fantasy privileges, whenever they can squeak some out. After all, she kicked off her legal career as a lawyer for Nixon's "Justice" Department.
Play ball!
Re:Cue the Bush bashing (Score:3, Informative)
Re:Cue the "corruption at the highest levels" whin (Score:3, Informative)
Are you serious? No, you can't be, either that or you've missed the entire point of the supreme court. Judges are there specifically to decide how a law should be enforced or even if it should be enforced at all.
Re:Judge Kollar-Kotelly is a Fascist (Score:5, Informative)
Wow. We should be very mad at President Clinton for appointing her to the Federal Bench.
Re:The Microsoft connection (Score:3, Informative)
Re:Cue the "corruption at the highest levels" whin (Score:5, Informative)
The Supreme Court also is supposed to do this, its just that at that level they are almost exclusively supposed to put the law in the context of the Constitution. Then the thing is, if they are strict constructionist or not, as to what "side" they're likely to come down upon.
Thing is, When Washington was appointing judges, its not like they had to reach very hard to find out what the guys who wrote the Constitution meant -- they were alive and kicking and hanging out down the block. The system was created before political parties when it was just assumed that people would know what they were supposed to do.
Of course, things are different now. People who see themselves as "Democrats" or "Republicans," "Liberals" or "Conservatives," instead of just as "Americans" are in the position to appoint judges who will agree with their specific neo-tribalist sensibilities, slants and biases.
However, I would venture to say that no matter what form of government was constituted, the end result would have been the same because the pattern is obvious since the time of Rome, if not before.
Re:When did this change? (Score:5, Informative)
Here's a 13 year old case that references even older cases supporting that interpretation
http://www.ll.georgetown.edu/federal/judicial/dc/opinions/93opinions/93-5411a.html [georgetown.edu]
"the President's immediate personal staff or units in the Executive Office [of the President] whose sole function is to advise and assist the President" are not included within the term "agency" under the FOIA.
I'd have to say its pretty obvious that the Bush Administration is on sound legal footing when they do so.
Re:Judge Kollar-Kotelly is a Fascist (Score:3, Informative)
Really? Perhaps you can explain why she "ruled that the U.S. Archivist's reliance on the executive order to delay release of the papers of former presidents is "arbitrary, capricious, an abuse of discretion and not in accordance with law" [reuters.com].
Re:When did this change? (Score:5, Informative)
In short, it is well-settled law that some executive entities are not covered by FOIA
Does this even matter very much? So they escape the FOIA, are they still not subject to the Presidential Records Act and possibly the Hatch Act?
There's a difference? (Score:3, Informative)
Re:Next up: Mandatory Journaling (Score:3, Informative)
They have, it's called the Presidential Records Act.
This ruling just says that the general public is not allowed to use the FOIA in order to find out whether the administration is complying with the law or not.
Moderators: please note (Score:1, Informative)
Re:When did this change? (Score:2, Informative)
Re:Wrong way around (Score:3, Informative)
Re:Wrong way around (Score:5, Informative)
One more method of accountability has been lost. I don't see that as an "Oh Well," situation.
Presidential records are subject to the Presidential Records Act (PRA) of 1978
That act was passed in honor of Richard Nixon's shenanigans.
When the President leaves office, his records are given to the National Archives
The Archives hang on to them for 12 years before making them public.
You may recall Bush issued an executive order in 2001 that limited the scope of the PRA
http://en.wikipedia.org/wiki/Executive_Order_13233 [wikipedia.org]
And you may also recall that a lot of people were unhappy with it.
I hope McCain or Obama repeals that Executive Order upon taking office.
Re:Wrong way around (Score:5, Informative)
From the Wikipedia article on E.O. 13233 [wikipedia.org]:I wonder what he's getting in return for holding the party line until the destruction is a fait accompli?
Re:Judge Kollar-Kotelly is a Fascist (Score:1, Informative)
Re:When did this change? (Score:5, Informative)
He is correct. The Vice President's primary duty is to serve as President of the Senate.
Re:Wrong way around (Score:3, Informative)
No, it doesn't. That "precedent" was set 26 years ago:
Sorry, but this story is a non-remarkable news item: News Flash! In a surprising turnabout of events, the Supreme Court upholds the unconstitutionality of slavery!
OK, hyperbole aside, the point is that we (the people) want more transparency in government, but that the laws haven't caught up with what we want. Regardless of our personal political leanings, everyone (at one time or another) has wanted more government transparency - usually during the time the opposing party has controlled the White House (let's be honest with ourselves...)
But there's another bound - how much transparency is too much? Obviously, there are things that our government keeps secret from us that we agree should be kept secret (e.g., nuclear launch codes for our ballistic missile submarines, encryption keys used by the military, etc.) In other words, we choose to allow the government to keep secrets from everyone, including us, that if made public would compromise the safety of the person we've elected as our leader, the security of our nation, our states, and ultimately, our families.
So what are the bounds of acceptability in governmental secret-keeping? This discussion illustrates a gray area in those bounds, because of one simple fact: Any information publicly available in America is publicly available to everyone else in the world.
The problem is that we, the people, want this information in order to make more informed decisions about our leaders and their administration. Yet the revelation of the internal workings of a given administration, while it will certainly provide satisfying reading for our nationally-internal critics and opponents of the current administration, this information will also provide potential adversaries with insight into the inner workings of our highest levels of government, and also the idiosyncrasies of our current leader (Clinton, Bush, Obama, whoever it happens to be at the time).
Of course, this isn't a problem if you choose to believe that there *are* no adversaries - in other words, that everyone who wished the world were different from how it is now were somehow "above" using forcible means to attempt to make it so.