Yet More White House Involvement in FOIA Responses

As I’ve been writing my series on the Administration’s extensive efforts to hide all mention of what I have decided to call the Gloves Come Off Memorandum of Notification, this passage from Daniel Klaidman’s article on the Administration’s equivocations about revealing information on the Anwar al-Awlaki killing has been nagging me.

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)

The suggestion here is that White House Counsel Kathryn Ruemmler didn’t want to affirmatively reveal details about Awlaki’s killing because doing so would mean they’d have to reveal details in the ACLU and NYT’s FOIAs for … the same information.

That never really made sense (though I never dwelt too much on it because the Administration’s stance on secrecy rarely makes sense).

But in the last few days, I’ve been wondering if Ruemmler was thinking not about the drone FOIA–about revealing details of one element authorized by the Gloves Come Off MON–but instead thinking about the MON itself. After all, if the government reveals one (torture) after another (drones) of the programs authorized by the Gloves Come Off MON, then it gets harder and harder to claim the whole MON must remain secret. And remember, still to be litigated in the torture FOIA is the MON itself, in addition to what I believe are references to it in the title of the Tenet memo.

And while this may mean nothing, the government has been stalling on its response to the drone FOIA. Back on April 9, the government asked for 10 more days to respond to the FOIA. Judge Colleen McMahon responded by snipping, “Ok, but dont ask for any more time. If government official can give speeches about this matter without creating security problem, any involved agency can.” Yet in spite of her warning, they asked for an additional month-long extension today.

We write respectfully on behalf of the Department of Justice and the Central Intelligence Agency (collectively, the “Government”) to seek a further extension until May 21, 2012, of the Government’s deadline to file its consolidated motion for summary judgment in these related Freedom of Information Act cases seeking records pertaining to alleged targeted lethal operations directed at U.S. citizens and others affiliated with al Qaeda or other terrorist groups. Attorney General Eric H. Holder, Jr. has personally directed us to seek this additional time to allow the Government to finalize its position with regard to the sensitive national security matters presented in this case.

We are mindful of the Court’s admonition in its April 9, 2012, order that the Government not seek an further extensions of its briefing deadline, and we do not take this request lightly. Given the significance of the matters presented in this case, the Government’s position is being deliberated at the highest level of the Executive Branch. It has become clear that further consultation and discussion at that level of the Executive Branch is necessary before the Government can make its submission to the Court.

We understand from the Court’s April 9 order that, at this stage of the proceedings, the Court has expressed doubt about the relative complexity associated with the Government’s position. It is not possible to fully inform the Court of that complexity associated with the Government’s position. It is not possible to fully inform the Court of that complexity on the public record. Accordingly, in order that the Court be fully informed as to the basis for the Government’s request, we respectfully seek leave to submit for the Court’s ex parte and in camera review a classified declaration by Director of National Intelligence, James R. Clapper, Jr. [my emphasis]

McMahon was actually more sympathetic to this request, it seems, than the April 9 extension.

I have read Director Clapper’s declarations (which must remain under seal–believe me, I appreciate the irony) and I will grant the extension requested by the government.

Maybe there’s no connection. Maybe the government, after having gotten the National Security Advisor involved in one FOIA, has grown to like deliberating FOIA responses “at the highest level of the Executive Branch.” Though you’d think the President would turn his attention to reelection rather than all these measly FOIAs.

You know. Running for reelection on his “Most transparent Administration in history” slogan?

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

6 replies
  1. rugger9 says:

    Whatever it is it must be a helluva big problem. I doubt even if Shrub ordered corset wearing while waterboarding that this much secrecy would be necessary, yet there it is.

    However, what if it was Darth Cheney and NOT Shrub who signed off on this? Would that be a big enough problem?

  2. JTMinIA says:

    I’m not sure where this OT will cause the least damage, but I scared my 8yo son yesterday while driving home. I was listening to Obama on NPR as he babbled about new sanctions against countries that use technology (including wire-tapping and phone-GPS-tracking) against their own citizens. I screamed out something along the lines of “you ****ing hypocritical bag of ****” forgetting that I wasn’t alone in the car. A thread on said hypocrisy would be welcome.

  3. What Constitution says:

    To: Those persons, or their aides, who may be (1) “deliberating at the highest level of the Executive Branch”, and also (2) reading this to see “what’s being noticed” —

    Please recite the following statement: “I do solemnly swear to protect and defend the Constitution of the United States of America”, preferably while looking into your own eyes in a mirror.

    Proceed accordingly please. It’s what you’re there for. Try this, it’s a start.

  4. klynn says:

    “You know. Running for reelection on his “Most transparent Administration in history” slogan?”

    There are days I think you deserve a group hug for your insight translated via snark.


  5. klynn says:


    Are you sure you were not in my car? My 8 year old son also accidentally heard an ear full while I was listening to the same NPR story yesterday.

    When we got home, I had to go pull weeds to calm down and wished I could “pull weeds” with EW!

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