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Solicitor General Email FOIA Shows White House Stunt Fail

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In all the government shutdown, nuclear meltdown and Libya war of choice news dominating the media landscape the last couple of weeks, a completely juicy little tidbit was pried out of the Obama Administration by a right wing news outfit – and almost nobody picked up on it.

CNSNews, the cyber division of the Brent Bozell run right wing Media Research Center, has scored a bit of a coup with the acquisition of a set of FOIA documents from the Solicitor General’s office partially detailing the unusual grooming of Elana Kagan to ascend to the Supreme Court. The 66 pages of documents are fascinating and offer a unique and rare glimpse into the backstage machinations in the SG Office. The FOIA CNSNews issued was targeted almost solely at the great whale the Ahab like conservative right are pursuing, the Affordable Healthcare Act they unaffectionately refer to as “ObamaCare”.

Here is the thing, why would the Administration agree to turn over the emails? They are almost surely protected within the ambit of deliberative privilege exemption commonly recognized for the Executive Branch. Indeed, the first time CNSNews requested the records, the request was flatly rejected, back on June 22, 2010. But, the Administration, on its own, reconsidered, sought slight clarification and, finally, on March 15 of this year, delivered the FOIA records to CNSNews. The response letter from the Solicitor General’s office facially states that they would have been well within their rights to so withhold, but “it would be appropriate to release significant portions of such records requested as a matter of agency discretion”.

Uh huh. Experts in such matters were shocked. Kannon Shanmugam, a veteran of the SG’s office now with Williams & Connolly, stated (subscription may be required):

…the documents represent “an unusual if not unprecedented” look at the office’s operations. “It raises concerns about chilling lawyers in the office in the conduct of their work, and gives an incentive not to put things down in emails.

Indeed that would be seemingly very sound analysis. So, why did the Obama Administration give up the goods? For that, a quick look at what the emails depict, and what the FOIA asked for is necessary. As the FOIA search terms and parameters indicate, CNSNews was looking for instances of Elana Kagan’s Read more →

State Secrets Non-Compromise Compromise Architect to Replace Kagan

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The great news just keeps coming.

Remember the “new” state secrets policy DOJ announced last year? It basically amounted to a promise that the Attorney General would review any invocation of state secrets to make sure such an invocation was really really secret rather than just sort of secret but really embarrassing, along with a promise that an Inspector General (but not a court) would investigate in case of wrong-doing (at the time, some of the existing state secrets invocations had already been investigated by IGs). Here’s how I described the “new” policy when it was announced.

What the “new” state secrets policy appears designed to do is buy time and limit the legal battlefields on which the Administration tries to stave off a CIPA-like process.

Legislatively, it appears the “new” policy (and presumably some pressure on Leahy directly) has convinced Leahy, at least, to hold off on moving his legislation forward. He seems to be content to wait and see how this new policy plays out. Nadler, on the other hand, seems to want to push forward with legislation (so is Russ Feingold, but he’s not in the same position to push forward Senate legislation as Nadler is). So at the very least, Holder’s “new” policy will buy the Administration time before Congress tries to reel in executive power.

Then there’s Horn. Word is that Holder will use the “new” policy to withdraw the state secrets claim in one case, and by all appearances that one case will be Horn (I don’t know whether that means they will try to settle Horn, or whether they’ll just move forward with what amounts to a CIPA-like process without a state secrets claim behind it.)

Now of the three cases in question (Horn, al-Haramain, and Jeppesen), Horn is the one that was the biggest slam dunk legally to support a CIPA-like process (because of the fraud involved and the Circuit Court’s earlier limitation on the state secrets claim). It’s the one in which the Bush Administration’s claim to state secrets was most bogus. And it’s the least risky one to settle or litigate.

By withdrawing the claim of state secrets in Horn (if that is indeed what will happen), the Administration will avoid having the DC Circuit joining the 9th in supporting some kind of CIPA-process in state secrets, while still giving the Administration hopes of dismissing Jeppesen and al-Haramain based on state secrets.

In other words, this is all a big bureaucratic ploy to try to keep the Bush Administration’s illegal actions on extraordinary rendition and warrantless wiretapping secret.

Well, the guy Obama plans to replace Kagan with is the architect of this “smoke and mirrors” policy.

The White House is poised to name Don Verrilli, an associate White House counsel, as solicitor general after Elena Kagan is confirmed to the Supreme Court. Verrilli joined the Obama administration as an associate deputy attorney general, where he helped his close friend, Attorney General Eric Holder, craft the Justice Department’s new state secrets doctrine guidelines.

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Verrillii’s trial balloon appointment as SG will be viewed suspiciously by civil libertarians for his authorial role in the state secrets drama and for his record of fighting on behalf of industry against tech entrepreneurs.  But he’s got the trust of Holder, Bauer, and President Obama.

I can’t wait to see what Obama has in store next to whittle away at the rule of law.