AUGUST 19, 2011
August 19, 2011
From the Desk of Judicial Watch President Tom Fitton:
JUDICIAL WATCH HISTORIC VICTORY! Court Slaps Down Obama Administration Secrecy, Rules White House Visitor Logs Subject to FOIA
In a historic victory for Judicial Watch and an embarrassing defeat for the Obama administration, a federal court ruled on Wednesday that Secret Service White House visitor logs are agency records that are subject to disclosure under the Freedom of Information Act! U.S. District Judge Beryl Howell issued the decision in Judicial Watch v. Secret Service, (No. 09-2312).
Here’s the bottom line: The Obama administration will now have to release all records of all visitors to the White House – or explain why White House visits should be kept secret under law.
In our lawsuit we asked the court to order the release of Secret Service logs of White House visitors from January 20, 2009, to August 10, 2009. The Obama administration’s principal argument had been that the logs were not “agency” records subject to the Freedom of Information Act (FOIA). And just in case that argument didn’t hold water, Obama administration lawyers took a kitchen sink approach in attempting to stop our lawsuit, asserting a number of other arguments regarding why these records should not be released. The court struck them all down, one by one.
Please click here to read Judge Howell’s complete ruling for all of the details, but here’s a quick summary of the court’s conclusions:
The Obama administration argued the visitor logs are not “agency” records subject to FOIA. The court applied a standard “two-part” test, and ultimately concluded, “…the Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records. This argument is circular. The claimed restrictions on disposal stem from the defendant’s assumption that the documents are under Presidential control—the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA.”
Judicial Watch noted in its complaint filed on December 7, 2009, the Obama administration’s claim “has been litigated and rejected repeatedly.” The court noted precedent in its ruling: “This Court agrees with the conclusions of the other judges in this District that have considered this question and finds that the records are subject to FOIA.”
- The Obama administration argued that Judicial Watch’s request is too massive and broad and cannot be processed. Judge Howell was unconvinced. “While the Court is sensitive to the burdens raised by the plaintiff’s broad brush request for ‘all’ records of a certain type over a nine-month period, including the need to review such records for applicable exemptions, the Court is not persuaded that the plaintiff’s request requires a blanket rejection.”
- The Obama administration argued that Judicial Watch’s request would raise Constitutional, “separation of power” issues. Judge Howell ruled, “…The Court is skeptical of the underlying premise that the inclusion of [visitor logs] under FOIA raises any serious Constitutional problems….since the statutory language is unambiguous in relation to this issue, and the FOIA has built-in exemptions that mitigate the risk of the precise separation of powers concerns the defendant raises, the Court rejects defendant’s interpretive argument.”
- The Obama administration argued that Judicial Watch’s request raises national security concerns. The court noted, “At no point does the Secret Service assert, however, that there are not at least some records implicated by plaintiff’s FOIA request that could be easily searched for, separated out, and disclosed without raising national security concerns.”
Ultimately, Judge Howell concluded that “the proper course of action by the Secret Service is duly to process [Judicial Watch’s] FOIA request, disclose all segregable, nonexempt records, and then assert specific FOIA exemptions for all records it seeks to withhold.”
In other words, release or explain.
Back in September 2009, the Obama administration made a big deal out of its new policy to release the visitor logs voluntarily. But here’s the reality of the situation. The White House insisted that it could release visitor information at its own discretion, the timing and specifics of which was not subject to court review. And despite White House misinformation to the contrary, tens of thousands of visitor logs are being withheld from disclosure by the Obama administration. These records are now subject to disclosure under FOIA.
We’ve come a long way since our October 27, 2009, meeting at the Obama White House. As you may recall, Judicial Watch staff visited with senior White House officials led by Norm Eisen, then-Special Counsel to the President for Ethics and Government, to discuss Judicial Watch’s pursuit of the visitor logs.
During the meeting, White House officials offered to make some accommodations to Judicial Watch on the visitor logs, and encouraged Judicial Watch to publicly praise the Obama administration’s commitment to transparency. However, the White House refused to abandon its legally indefensible contention that the visitor logs are not subject to FOIA law. So we went another way. We sued the Obama administration on December 7, 2009, and ultimately earned a landmark court decision affirming the rule of law. Once again, our legal team deserves congratulations for its persistence. This is a tremendous victory.
This decision, by an appointee of the President Obama himself (!), is a refreshing example of a court reminding the Obama administration that it is indeed subject to the rule of law.
Judicial Watch Sues National Labor Relations Board for Documents Concerning Boeing Lawsuit
It probably would not surprise you to learn that the Obama administration is apparently using the National Labor Relations Board (NLRB) as a battering ram to aid powerful (and financially supportive) unions. The target is the Boeing Corporation. And Judicial Watch has launched a full investigation into the matter.
On Monday, August 15, we filed a Freedom of Information Act (FOIA) lawsuit against the NLRB to obtain records concerning the agency’s decision to file its lawsuit against Seattle-based Boeing for opening a $750 million non-union assembly plant in North Charleston, South Carolina to manufacture its Dreamliner plane (Judicial Watch v. National Labor Relations Board (No. 11-1470)).
Now why would the NLRB insert itself into the private business decisions of Boeing? Because powerful unions are up in arms over the fact that Boeing would choose South Carolina, which is a “right to work” state, for its manufacturing plant. (In a “right to work” state, workers cannot be forced to join a union or pay union dues as a condition of employment.)
We want access to the records so that we can see, among other concerns, just how involved the unions and the Obama White House were in this extraordinary assertion of federal government powers.
Specifically, we want access to the internal communications between officials, officers, and employees of the NLRB related to the Boeing Corporation in general and the agency’s decision to file its lawsuit. We want records of communication between the NLRB and the Obama White House, the International Association of Machinists and Aerospace Workers, the AFL-CIO, the Service Employees International Union (SEIU) and any other third party trade union, among others. And we want any NLRB records related to the impact of the new Boeing plant on employment in South Carolina. (The time frame for these requests is January 20, 2009, to July 14, 2011.)
The response from the Obama administration has been the typical stonewall. By letter of July 28, 2011, the NLRB acknowledged that the agency received Judicial Watch’s complaint on July 14, 2011. However, the NLRB has failed to respond within the statutory allotted twenty business days. In fact, to date, the NLRB has failed to produce any documents or indicate when responsive documents will be released.
In addition to refusing to respond to Judicial Watch’s FOIA request, the NLRB has also reportedly failed to respond to a subpoena issued by the House Oversight and Government Reform Committee seeking information related to the lawsuit. “This refusal by NLRB to abide by the law further heightens concerns that this is a rogue agency acting improperly,” Committee Chairman Rep. Darrell Issa said. “The integrity of NLRB and its leadership is clearly in question.”
The NLRB, for its part, is saying it filed the lawsuit in April 2011 because Boeing’s decision to open the Dreamliner production line in South Carolina was in retaliation against the International Association of Machinists and Aerospace Workers for a series of union strikes that reportedly slowed production of the plane in 2008 in Washington State.
Boeing issued a forceful response: The NLRB’s “claim is legally frivolous and represents a radical departure from both NLRB and Supreme Court precedent. Boeing has every right under both federal law and its collective bargaining agreement to build additional U.S. production capacity outside of the Puget Sound region.”
As I’ve said a number of times in this space, personnel is policy. And when you consider who’s running the NLRB, it is clear why the agency has behaved in this out-of-control manner.
Last year, President Obama bypassed the U.S. Senate and recess-appointed Craig Becker to head the NLRB’s five-member board. The Becker appointment was made after the U.S. Senate refused to move forward on his confirmation. An ally of ACORN, Becker had previously worked for the SEIU and the AFL-CIO, major financial backers of Obama and the Democratic Party. Controversially, Becker has refused to recuse himself from certain NLRB decisions affecting his former union clients.
So we have a union hack at the top of the NLRB. Even more reason for absolute transparency. The American people have a right to know the facts surrounding the extraordinary decision by the NLRB to sue Boeing in order to effectively shut down an entire factory in South Carolina. There are serious questions about the NLRB’s apparent abuse of power. There is simply no good reason for the NLRB to keep these records secret – unless it has something to hide. Yet again we see that President Obama, through his appointees, is contemptuous of an open and accountable federal government.
South Carolina obviously has an economic interest in putting an end to this ridiculous lawsuit. But the state is not alone in its opposition to this overreaching on the part of the NLRB. According to the South Carolina Attorney General’s office, 16 states have now joined a coalition opposing the NLRB lawsuit. The attorneys general from both “right to work” and unionized states have jointly filed an amicus curiae brief in the lawsuit on the side of South Carolina. But in the meantime, we are going to do all we can to shed light on how and why this decision was made.
No More Secrecy in Debt Fight
One of the main components of the legislative “solution” to the debt ceiling “crisis” that occurred a few weeks ago is the formation of a new bipartisan Super Committee that is charged with cutting $1.2 trillion out of the budget over the next ten years by November 23, 2011. (Technically, it’s called the Joint Select Committee on Deficit Reduction.)
Well, the Super Committee members have now been selected, and here they are: Senators Pat Toomey (R-PA), Jon Kyl (R-AZ), Rob Portman (R-OH), Patty Murray (D-WA), John Kerry (D-MA), and Max Baucus (D-MT) and Representatives Jeb Hensarling (R-TX), Fred Upton (R-MI), Dave Camp (R-MI), Chris Van Hollen (D-MD), Xavier Becerra (D-CA), and Jim Clyburn (D-SC).
Of course, when you’re dealing with these kinds of numbers ($1.2 trillion), lobbyists and special interests immediately come crawling out of the woodwork to do anything they can to avoid being placed on the chopping block. The press is already putting the campaign donors of these committee members under the microscope.
The 12 Super Committee members have received $64.5 million in campaign contributions from political action committees (PACS) and employees over the last decade (numbers courtesy of Maplight). At the top of the list are PACS funded by the legal profession, Wall Street firms (such as Goldman Sachs, Bank of America, and JP Morgan Chase), and Democratic/Liberal groups, who contributed $9.6 million to committee members.
(Interestingly, these Democratic/Liberal groups contributed more campaign funds than healthcare interests and professionals. Democrats on the committee received more than double the amount of donations from these special interest groups than their fellow Republican committee members.)
Rep. Xavier Becerra (or, more exactly, his lobbyist cut-outs) is already using his Super Committee membership to began to raise campaign money. As I tweeted at the time:
Ka-ching! Super-committeeman Rep. Becerra puts out for the “for sale” sign on his public office. Bribes welcome? http://t.co/UVHJ7aD
And it doesn’t help that Senate Majority Leader Harry Reid (D-NV) appointed Sen. Patty Murray (D-WA) to the debt panel. Sen. Murray is the head of the Democratic Senatorial Congressional Committee, the chief campaign fundraising arm for her fellow Senate Democrats. And you can bet the Republican members will see, as if by magic, major dollar increases to their political war chests.
All of this is further reason why transparency in the Super Committee’s proceedings is so critical. And thankfully, this is something upon which members of both political parties agree. So a cheer for House Minority Leader Nancy Pelosi (D-CA) who issued a strong statement:
The American people are watching to see if the bipartisan Joint Committee will develop a plan to responsibly reduce the deficit in a balanced way while promoting economic growth and creating jobs.
The work of this Committee will affect all Americans, and its deliberations should be open the press, to the public and webcast.
Any acceptance of the Committee proposal will be dependent on the ability of the American people to fully view its proceedings.
I don’t buy the “balance,” but I’m buying the transparency.
Meanwhile, six Senate Republicans have written a joint letter to Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) expressing their concern about the tremendous power wielded by the Super Committee and asking for absolute transparency in its proceedings:
[W]e are united in our concern about the authority granted to this committee.…We ask you, as two of the appointers of the Committee, to ensure that all meetings and hearings are done in a transparent manner through advanced public notification, public attendance and live television broadcasts.…All Americans should have the ability to see how the committee crafts a concrete plan for our fiscal future.
It will be interesting to see how things develop with Republican and Democratic leaders seemingly united on the issue of transparency. Of course, the devil will be in the details and in the follow through. We’ve been promised transparency before — remember Obama’s broken promise on health care reform meetings? — only to see politicians return to their secretive ways.
By the way, it is important to remember, we’re not just talking about spending cuts. Despite the grandstanding and backslapping by Republican leaders after the debt ceiling deal was struck, tax increases (called “revenue hikes” when politicians want to avoid the “t” word) are still on the table. As reported by Fox Business Channel: “Gridlock resulting in zero cuts would automatically trigger $1.2 trillion in across-the-board cuts or hikes in revenue, meaning possibly tax increases.”
The power of this Super Committee is extraordinary and seemingly at odds with how our nation’s Founding Fathers intended Congress to operate. This is all the more reason that the American people should demand absolute transparency. Please call the members of the Super Committee today and tell them you want all committee proceedings to be transparent and available to the public. Here are their phone numbers (full congressional directory here):
Senator Pat Toomey (R-PA): 202-224-4254
Senator Jon Kyl (R-AZ): 202-224-4521
Senator Rob Portman (R-OH): 202-224-3353
Senator Patty Murray (D-WA): 202-224-2621
Senator John Kerry (D-MA): 202-224-2742
Senator Max Baucus (D-MT): 202-224-2651
Representative Jeb Hensarling (R-TX): 202-225-3484
Representative Fred Upton (R-MI): 202-225-3761
Representative Dave Camp (R-MI): 202-225-3561
Representative Chris Van Hollen (D-MD): 202-225-5341
Representative Xavier Becerra (D-CA): 202-225-6235
Representative Jim Clyburn (D-SC): 202-225-3315
Until next week…
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