The “Most Transparent Administration Ever” Treats Recess Appointments with Greater Secrecy than Illegal Wiretapping

Charlie Savage just released the OLC opinion he got in response to a FOIA on opinions relating to recess appointments (this became an issue after Obama appointed Richard Cordray head of the Consumer Financial Protection Board using a recess appointment). It is a Jack Goldsmith memo dated February 20, 2004.

It is almost entirely redacted. Just 11 lines out of three pages are left unredacted–and one of those reads, “Please let us know if we may be of further assistance.”

Just for shits and giggles, I compared that memo to another Jack Goldsmith memo, one that relates to actual national security issues: Goldsmith’s May 6, 2004 memo finding the revamped illegal wiretap program legal. That’s a 108 page memo, of which 46 pages are entirely redacted or redacted to the same degree as any one of the three pages in this recess appointment one. There are a slew more redactions, many of them obviously improper.

The last line, “Please let me know if we can be of further assistance. (U)” appears unredacted there, too.

Nevertheless, the Administration redacted far more of the earlier Goldsmith memo–the recess appointment one–than the one dealing with one of our most sensitive counterterrorism programs.

Next up, the Administration is going to start redacting Civics textbooks, because the workings of government are so terribly sensitive.

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.

18 replies
  1. Bustednuckles says:

    Some day I would like to shake your hand, just for shits and giggles.

    You have such a refreshing “Regular Joe” quality about you that belies the intensity with which you regularly deal with our government and it’s craven ways.

  2. Peterr says:

    So according to the Obama DOJ, math is unclassified, though you don’t have to show your work.

    Wish I’d known that back when I was taking differential equations in college.

  3. bmaz says:

    I guess I should ask Charlie, but is there a stated basis for the heavy redaction and failure to produce anything on the other memo?

  4. Peterr says:

    It’s a Friday, so irresponsible speculation is surely in order . . .

    “We believe that . . . [one line redacted] . . . supports the President’s authority to make recess appointments during the current 11-day recess.”

    Let’s see. What could that redacted line possibly say?

    “. . . a broad and expansive reading of Through the Looking Glass by Lewis Carroll . . .”

    “. . . absolutely nothing in the US Constitution, the writings of the Founders, nor the debates of the Constitutional Convention . . .”

    ” . . . a creative interpretation of Rule 5-3 of the Rules of Golf (substituting a new ball for a damaged one) . . .”

    ” . . . the wisdom of Yoda — “do or do not; there is no try” — clearly . . .”

  5. lysias says:

    Is there any reason for redacting passages from a letter like this other than that the passage would reveal classified information? What classified information could possibly be involved with the issue of recess appointments?

  6. lysias says:

    Goldsmith is a professor at Harvard Law School now, isn’t he? Maybe someone could ask him what the basis could be for redacting all this stuff?

  7. bmaz says:

    @lysias: Other than classified information, there are several possibilities under what is commonly known as “Executive Privilege” such as the presidential communications privilege for communications of the President and his advisors; legal advice or legal work, i.e. attorney-client or attorney work product privileges and the deliberative processes of the President and/or his advisors.

    Any or all of those may have come into play; I am just curious if they specified what their ground was.

  8. What Constitution? says:

    If “male of military age” means “militant”, then “classified” can certainly mean whatever the President (or his aides) says it means, right?

  9. earlofhuntingdon says:

    When the sausage making would make even Sinclair Lewis gag, then I suppose the sausage vendor imagines falsely but insistently that it is best to call the butcher shop a candy store.

  10. emptywheel says:

    @lysias: They claim deliberative privilege on these all the time. THe idea being that they don’t necessarily equate to the reasons the Admin decided to pursue a certain policy, and therefore this is just presidential advice.

    And I’m not even sure, in this case, whether the Admin did recess anyone. In which case the whole thing would be deliberative.

  11. Peterr says:

    Paragraph 4:

    4. In deciding whether an opinion is appropriate for publication, the Office considers a number of factors, including the potential importance of the opinion to other agencies or officials in the Executive Branch; the likelihood that similar questions may arise in the future; the historical importance of the opinion or the context in which it arose; and the potential significance of the opinion to the Office’s overall jurisprudence. In applying these factors, the Office operates from a presumption in favor of making its significant opinions fully and promptly available to the public where possible.

    This is, of course, followed by paragraph five which stresses “deliberative process” and executive privilege.

    The significance of paragraph 4 — especially the phrase about historical significance — seems highly appropriate in this case. We’re talking about the ability of the executive to act in the absence of the advice and consent of the Senate, after all. One would think that the executive branch would so highly value the legal minds of the OLC that they’d be not just happy but proud to display the grounds on which they stake their position.

    Instead, we get “We believe that . . . [one line redacted] . . . supports the President’s authority to make recess appointments during the current 11-day recess.”

  12. emptywheel says:

    @bmaz: I will say it’s probably appropriate to hide the details of someone BushCo considered recess appointing but didn’t.

  13. bmaz says:

    @emptywheel: I take back what I said earlier, the Bushies DID recess appoint someone at the time of the Goldsmith memo, William Pryor to the 11th Circuit.

    It was Elwood’s memo that (according to Elwood) was never used as a basis. As a pure internal “memo to the file”, my guess is they are on pretty solid ground in withholding it if that is their desire (which it clearly is).

  14. emptywheel says:

    @bmaz: Huh, You mean that could be Pryor’s ticket–the same guy now eliminating any requirements that prosecutors act fairly in his circuit?

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