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."
To sum up then: (Score:5, Insightful)
Wrong way around (Score:4, Funny)
Oh well, only a few months left
Re:Wrong way around (Score:5, Insightful)
But this sets a legal precedent that similar emails will NEVER be subject to the FOIA. The next president will not even have to think twice about it, or bother to hide or lose them. They just don't have to let us see them.
One more method of accountability has been lost. I don't see that as an "Oh Well," situation.
C.
Re:Wrong way around (Score:5, Insightful)
Access to communications required by subpoena or Congress, however, should most certainly be required.
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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?
Publicise this in KY and wreck his career. (Score:4, Interesting)
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.
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But this sets a legal precedent
No, it doesn't. That "precedent" was set 26 years ago:
The FOIA definition of "agency" includes an "establishment in the executive branch of the Government (including the Executive Office of the President)." 5 U.S.C. 552(f). Relying on the conference committee report explaining the 1974 amendment to the definition, the Supreme Court has held that the term "agency" does not cover "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Conf. Rep. 1380, 93rd Cong., 2nd Sess. 15 (1974)).
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 - usu
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Till what? The return to Camelot? Dream on... You're gonna see Jesus first.
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The gained authority of the whitehouse is going to carry over to the administration of the next pinko commie liberal that gets elected. You've screwed yourselves.
Ah well, that's okay (Score:5, Funny)
Openness is overrated in democratic societies, anyhow. I'm sure they wouldn't be keeping this all a secret if it weren't in the best interests of the people.
Now, if you'll excuse me, I need to go send my credit card numbers to these nice former Nigerian heads of state.
The Microsoft connection (Score:4, Insightful)
And, can we expect this ruling to be appealed?
Re:The Microsoft connection (Score:5, Insightful)
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Yes. But don't blame the judge for the ruling; she can only rule based on the evidence before her. [...]
I think there's enough blame to go around.
Kollar-Kotelly seems suspiciously like a party apparatchik, delivering the exact rulings the Republicans need, just when they most desperately need them. She did it in the Microsoft case and she did it again now. Perhaps that isn't yet enough to establish a pattern, but at the very least it's enough to arouse suspicion.
And judges can and do decide cases based on many factors besides the evidence; the law leaves more than enough room for the introduction of person
Re:The Microsoft connection (Score:5, Insightful)
"In August 2007, in a rare move, Judge Kollar-Kotelly ordered the administration of George W. Bush to give its views regarding records requests by the ACLU on the National Security Agency's wiretapping program"
"On October 1, 2007, Judge Kollar-Kotelly reversed George W. Bush on archive secrecy in a 38-page ruling, which said 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."[3] The National Security Archive at George Washington University alleged that the Bush order severely slowed or prevented the release of historic presidential papers."
Both via her Wikipedia page. I'd say if anything, she's refusing to be partisan either way.
Re:The Microsoft connection (Score:4, Interesting)
Involvement with FISA should disbar anyone - the court violates the 4th amendment by being a secret court.
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When did this change? (Score:5, Interesting)
From everything I've heard, it applies to all government agencies. Does this mean if a government office can make itself appear harmless enough, it doesn't have to cooperate?
"Sorry, I'm only the FBI director's SECRETARY. I don't have substantial independent authority."
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]
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:When did this change? (Score:5, Insightful)
The President's records fall under "Executive Privilege", and cannot be subpoenaed or FOIA'd. Rationale: the Pres needs to be able to make independent decisions without being second-guessed or legally harassed.
Federal agencies with authority independent from the President do not have this privilege, and must comply with FOIA. Rationale: the people should know what their government is up to.
Legal question: Is the White House's internal bureaucracy part of "the President" or is it an "independent agency" from the president? Judge's answer: it's part of the President, and therefore privileged.
Can't say I like what the White House is doing, but the judge's decision looks pretty clear-cut as I see it.
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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: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.
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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?
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Re:When did this change? (Score:5, Insightful)
That is, if this isn't bullshit.
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Kollar-Kotelly (Score:2, Informative)
Huh? (Score:2)
It must be Monday. I really suck at Mondays.
In what way.. (Score:3, Insightful)
Not that the White house has ever given a damn what any judge has said anyway. If any backups of those emails had been made, they would have disappeared long ago.
This administration sickens me when I think about it, so I'll stop.
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The FOIA only applies to offices that are substantially independant FROM the executive (ie Bush & Co). Obviously the executive is NOT substantially independant from itself, so the FOIA doesn't apply to them. The judge probably ruled correctly, according to the FOIA.
Not that the White house has ever given a damn what any judge has said anyway. If any backups of th
I'm Surprised (Score:2)
Note to self: (Score:2, Funny)
2.) When I get sued, pay off court clerk to assign case to Judge Kollar-Kotelly.
3.) ???
4.) Profit!
Cue the "corruption at the highest levels" whines (Score:4, Insightful)
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: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:Cue the "corruption at the highest levels" whin (Score:4, Insightful)
The fun thing about the law... and all the caselaw that goes with it, is that there's so much of it.
You could argue it either way.
So underlying legal philosophies do come into play. That's why it matters who
gets apointed to the bench. They can push the law in one direction or another.
They may choose to only push inches at a time but they can still push.
Re:Cue the "corruption at the highest levels" whin (Score:5, Insightful)
If voting could actually change anything, then it would be illegal. You think shuffling around Congress and the White House will change the entrenched corruption, pay-to-play atmosphere and pro-corporate agenda of the US government (or any government)?
Voting is little more than a democracy placebo. Every few years you are given a "choice" between corporate candidate A and corporate candidate B, both of whom support the exact same agenda--only phrased differently and with a few minor variations. Enter the compliant corporate media to highlight and magnify those differences and shut out any genuine challengers to the status quo.
Meanwhile, everyone is so busy arguing over which of the terrible candidates is less terrible, that the task of building a genuine progressive, grassroots movement for change (against the war, for worker's rights, health care, etc...) is indefinitely shelved. The only way to win progress is through struggle. As abolitionist Frederick Douglass once said, "Power concedes nothing without a demand." So instead of actually struggling for change we're herded into the political system controlled by the same people who benefit from the status quo and resist our every demand for progress. All of our demands are dropped or watered down to suit the electoral needs of your chosen candidate--and after the election they are forgotten completely.
The major parties aren't worth wasting more than 1 minute or 1 dime on. The real task is to create a movement powerful enough to win our demands regardless of which corporate tool sits in the White House. As famous historian Howard Zinn put it, "the really critical thing isn't who is sitting in the White House, but who is sitting in--in the streets, in the cafeterias, in the halls of government, in the factories. Who is protesting, who is occupying offices and demonstrating--those are the things that determine what happens."
WTF? (Score:5, Insightful)
At this point, I can only wish that we had an ineffective president who did not accomplish anything in the white house for the last 8 years. We would be a lot better off right now.
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Yeah, in a perfect world, this is true. But in the real world, which judges sit where is such a hotly contested game precisely because personal bias and political allegiance does in fact make a significant difference and everybody with a brain knows it.
Re:Cue the "corruption at the highest levels" whin (Score:5, Insightful)
Well, they (judges and justices, all-inclusive) are there to both interpret the law and to determine if the law is constitutional.
This is why people roll their eyes when wackjobs start harping about "activist judges". That's what judges are there for, to temper the will of the people (or their representatives), and the power of the executive branch, via applying the filter of the Constitution to their actions.
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The People have lost. Not enough people care about what happens as long as they have American Idol and Survivor, and credit cards.
Those who do care are less than 1 percent, and are also branded as nutjobs.
We have already lost, and can change nothing. Voting is a sham; the people we elect will do what they want anyways at the cost of screwing over the little people, and if we don't vote the way they like, they'll just mess with the votes of electronic voting.
And don'
Next up: Mandatory Journaling (Score:5, Insightful)
Seriously, what if the roles were reversed? The Feds are looking for some HIPAA-related email, and you can't produce it. What would they say??
"You should have had a system in place that you could rely on..."
Goose, meet Gander.
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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.
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"You should have had a system in place that you could rely on..."
Well, sure. Because there are actually regulations in place that call for that. It's the law. In the case of people who have been hired by an executive administration to provide research, advice, and political guidance... they aren't subject to that same standard, for a reason. They're not an agenc
Next step? (Score:2)
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 interfe
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.
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Burn!
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Aren't you mad about all that too?
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Yeah, it's pretty funny how often the actions of a judge/justice have very little to do with who appointed them.
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Rulings you agree with:
Legally correct in every degree.
Common sense.
Right On
about Time
Rulings you don't agree with:
Fascists.
Bush brown nose.
Incompetent
On someone's payroll.
I can't wait for the howls when the 2nd Amendment ruling comes down.
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"fascist" was once reserved for the likes of franco, mussolini and hitler. it is now applied to small town planning and zoning boards, website administrators, and bad hairstylists
pick an epithet with more oomph next time if you want to insult the woman, you terrorist
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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].
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Riiight.
(Before invoking Goodwin please see Johnson v. Eisentrager [wikipedia.org] to understand the validity of this comparison).
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So rather than debate you resort to name calling? Strike-one.
> If you weren't a fascist, lying to make Nazis look like victims, you'd know that that's a bullshit lie.
Lying to make Nazi's look like victims? I fail to see how the link you supplied in anyway relates to the Eisentrager case.
Strike-two.
> But hey, you're really not sticking up for Nazis
I'm doing nothing of the sort
In case you are missing the context here (Score:5, Interesting)
In case you are missing the context here, the emails in question are interesting for a whole slew of reasons. The probably contain evidence of high crimes and misdemeanors (most likely by Cheney, but who knows [firedoglake.com]) and pretty much have to contain evidence of perjury (with the morass of statements that have been made under oath, someone is surely lying, we just don't know who). And them there's the Hacth act violations, the Abrimoff issues [wikipedia.org], the election tampering, and on and on.
These are the missing 18 minutes gone gonzo,
--MarkusQ
And so (Score:2)
A really good quote appeared in the footer of the page just now: "Presidency: The greased pig in the field game of American politics. -- Ambrose Bierce"
don't worry about it folks (Score:5, Funny)
i'm sure they have a copy of the inboxes in question sitting around somewhere [slashdot.org]
thank god for shoddy us government computer security and snooping totalitarian regimes: securing the transparency in our democracy that we deserve!
Wait, what? (Score:2, Insightful)
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Wrong headline (Score:5, Insightful)
There's a difference? (Score:3, Informative)
Just the first step in a long appeals process... (Score:2)
Unfortunately, as with so many cases that appeal to the Supreme Court, a final judgement could take years by which time there will be a new President and the records (if any still exist) will be long gone.
kids: the lesson you should take away is (Score:5, Insightful)
please don't believe in 'good guys win, bad guys lose'. clearly, bad guys WIN BIG. they cover their tracks, they lie and cheat and steal and kill and start wars to further their personal needs.
we all take our examples from our highest leaders. if something is game for our leaders, it should be good enough for us, too.
so kids, don't bother being honest and ethical. it does not pay nearly as well as being dishonest.
I believe we should be as honest and ethical as our exemplary leaders. they set the tone and the pace for what our society is becoming. so take your cue, kids; its not worth it to be honest and decent. lie, cheat, steal and do whatever you want because ITS WHAT OUR LEADERS DO.
"do not as I say but as I do"
The government has spoken. (Score:3, Insightful)
I await King George III so the people may repeat history. Again.
Tell the judge what you think! (Score:2, Interesting)
That name is familair (Score:2)
Somehow we're supposed to trust this woman with proper interpretation of the law?
Hopefully this will get overturned on appeal...
I think its safe to say... (Score:2)
This MUST be a joke. (Score:2, Funny)
Re:Cue the Bush bashing (Score:5, Insightful)
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Cue the Republican pissiness. (Score:5, Insightful)
Actually, I don't think there is that much pure Bashing happening around these parts. --I equate 'Bashing' with the desire punish by proxy for purely emotional reasons devoid of rationality or factual data. You can see evidence of this on those blog sites which are hopelessly obsessed and enraged far beyond any measure of reason by such things as, 'welfare moms milking the system'.
When discussing Bush, however, it's hard when pointing out basic reality to sound like one is doing anything BUT bashing. This is due to the reality being so very grim and the damning facts so plentiful. Welfare Moms and similar concerns generally don't have much impact on anything, whereas Bush policies have resulted in $120 per barrel oil, a crashed dollar, a quagmired immoral war, the hideously mis-managed Katrina disaster, to name just a few items. So the complaints may sound like 'Bush Bashing' but really, I would say that it is rational and necessary discussion, especially in the lead-up to the next election. Calling legitimate complaints about things which affect everybody in the country 'Bush Bashing' and condemning it as such smacks of Republican pouting and pissiness.
Sorry. I refuse to allow people make me feel guilty for having legitimate complaints. Abusive parents do the same thing to their kids.
-FL
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I guess this situation is partially because the political system that developed to organize the massive territory of the United States has not adapted to the current technological/social situation. People have a much greater power for oversight at this point in time, but states/governments never relinquish powers/authorities easily. The fact that you know about these machinations of powers is probably more a sign of this than of any increase if corruption or secrecy
Re:Cue the Bush bashing (Score:5, Insightful)
Re:Cue the Bush bashing (Score:5, Insightful)
That's entirely irrelevant. I don't really care what party it is, if the Democrats were in this situation they would be scrutinized just as much as the current administration is.
That they be held accountable for their actions?
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Really, it would have been either party, and any person in office that would have fought this.
That's entirely irrelevant. I don't really care what party it is, if the Democrats were in this situation they would be scrutinized just as much as the current administration is.
Unfortunately, the politics can't be just ignored. All it would take is a 3/4 majority in either house to get a Freedom of Information Act revision to make it speicifically applicable to the executive office. But likely any voting on such a thing would go down party lines, and once more the politics of the day take precedence over what's best for the country.
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They are politicians, what do you expect?
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They are politicians, what do you expect?
Free cheese, baby!
Oh, wait. I make too much to qualify for a 'stimulus' check.
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Agree or disagree as you wish with the rationale, but the concept is sound. No-one was ever "entitled" to that money.
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I wish that were true, but I worked for a company involved with White House e-mail being screwed up when Clinton was still in office. It made the news, then the story died a normal death (typical government screw-up) just like the now routine stories of sensitive information being lost on laptops, they don't even bother to report a
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If you don't, the people
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Also, the message of the phrase was never 'they're incompetent, so do nothing'.. especially since those in question are in a position of great power. Personally, i'd prefer a competent president.
Sadly, those horses bolted a long time ago.
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The problem has been throngs of douchebags like yourself who voted for him.
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