Emptywheel reported yesterday on a proposed Justice Department rule that would instruct the government to respond to FOIA requests for certain law enforcement and national security documents as if "excluded records did not exist." Meaning, the government could lie to FOIA requesters.
In effect, this rule would allow the government to shield information relating to an ongoing investigation, an informant, or classified information “pertaining to foreign intelligence or counterintelligence, or international terrorism” from FOIA by basically lying about whether such information exists or not.
The last comment period for the rule ended earlier this month. As Emptywheel analyzes, the rule appears to formalize an ongoing practice of lying to requesters, but federal courts have held firm that the government could not then lie to the Courts about the existence of records.
It also sounds as if the government is trying to avoid the awkwardness of telling requesters that potentially nonexistent records are classified. That was the response to my organization's (Government Accountability Project) FOIA request for the secret memo justifying the assassination of American Muslim cleric Anwar al-Awlaki, which I documented in my diary earlier this week. The Justice Department's response was:
the Office of Legal Counsel can neither confirm nor deny the existence or nonexistence of records responsive to your request . . . because the very fact of the existence or nonexistence of such records is itself classified . . .
Under the new rule, the Justice Department could simply say the memo did not exist, a more deceptive response, but also an even more ridiculous response considering that much of the memo has already been publicized.
As I wrote earlier this week:
To confirm the memo's existence, perhaps the Justice Department should read the front page of the New York Times, which contained a lengthy article with specific details from the memo, including the memo's authors, date, legal analysis, conclusions, and who from other agencies weighed in.
Or, DOJ could read the Washington Post, which broke the story about the memo days after Al-Awlaki's death:
The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi, the American-born radical cleric who was killed by a U.S. drone strike Friday, according to administration officials.
The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.
The layers of hypocrisy are too numerous to count.
Anonymous "administration officials" can leak the memo's details to the press - and they make sure to assure us that "there was no dissent about the legality." But DOJ refuses to "confirm or deny" even the memo's existence when I request the information using proper channels.
Then there's the hypocrisy that whistleblowers accused of disclosing or mishandling classified information get Espionage Act prosecutions under Obama.
Still, any response to a FOIA request is better than the government's reaction to GAP's FOIA request for the critical document in the case of National Security Agency whistleblower Thomas Drake - the Department of Defense Inspector General audit substantiating Drake. In that case, the government did not respond at all to GAP's request for an entire year, and then released a heavily-redacted version of the audit during what would have been the middle of Drake's criminal trial. Of course, the trial never took place because the Justice Department's case against Drake collapsed in spectacular fashion, and the government dropped all felony charges.
While prosecuting whistleblowers at record rates, refusing to acknowledge officially what "administration officials" strategically leaked through back channels, and proposing rules that would allow the government to lie to FOIA requesters, the Obama administration still somehow touts that it is "the most transparent in history." As I wrote last week, the Obama administration needs to adjust what it views as a "commitment to transparency:"
Transparency does not mean simply releasing information that makes government look good when strategically advantageous. Any run-of-the-mill dictatorship can manage that sort of "transparency." Real government transparency means releasing information to facilitate informed public debate about government actions.