The most transparent administration in history has struck another blow for opaqueness with a proposed new federal regulation expanding its ability to respond to Freedom of Information Act (FOIA) requests, as the new rule states, "as if the excluded documents did not exist."
Current provisions that allow for denying access to documents are found in 5 U.S.C. section 552(c) and were enacted in 1986.
Government can deny document access if the FOIA requester is under criminal investigation and the investigation would be jeopardized, when the request concern's an informant whose identity is otherwise not known, or when the request seeks records "pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information."
In denying the request, the government must cite the relevant exemption. The requester can then challenge the denial in court. The proposed rule change would allow the government to just say the documents don't exist, eviscerating FOIA and pre-empting the right to challenge the secrecy. A court cannot examine a document the government says doesn't exist.
The public's right to know is not absolute. Yet under current rules a court can determine whether the government's request for secrecy is justified. Even when documents are redacted to the point of meaninglessness at least we know they exist.
DOJ says it's a long-standing practice dating back to a 1987 memo from then-Attorney General Edwin Meese. That memo did not have the force of law and was recently challenged in court in a case involving the Islamic Council of California after the plaintiffs learned of documents the FBI said didn't exist.
"The government cannot, under any circumstance, affirmatively mislead the court. The court simply cannot perform its constitutional function if the government does not tell the truth," the judge wrote.
Neither can a democracy long sustain itself if the government has a right to lie.
Yet Melanie Ann Pustay, director of the Justice Department's Office of Information Policy, which wants to function like George Orwell's Ministry of Truth, says government does have the right to lie.
"To ensure the integrity of the exclusion is maintained, agencies must ensure that their responses do not reveal the existence of excluded records," she says.
A final version of the proposed rule could be issued by the end of this year. If approved, the new rule would officially become a federal regulation with the force of law. Presumably the Nixon White House could have used the rule during Watergate to say, "Tape? What tape? It doesn't exist." This rule is more effective than any number of shredders could be.
The rule comes at a time when the Department of Justice is actively stonewalling Congress on requests for information on the Fast and Furious government-sponsored gun-running operation that smuggled 2,000 weapons into Mexico. The weapons were involved in the deaths of two U.S. agents, Brian Terry and Jaime Zapata. Then there are the excesses of crony capitalism such as Solyndra, which prompted an FBI raid.
What we know about such incidents has been gleaned largely from documents and emails the government was forced to disclose. They showed, among other things, that the attorney general of the United States flat-out lied about what he knew about Fast and Furious and when he knew it.
It is this rule that needs to be shredded. We need to know the truth about what the government is doing to hold it accountable. The consent of the governed needs to be an informed consent.
Invester.com
No comments:
Post a Comment