Tom Fitton's Judicial Watch Weekly Update

Tom Fitton's Judicial Watch Weekly Update | May 04, 2012

Weekly Update: Obama Spikes Transparency

Obama Spikes the Football on Osama bin Laden’s Home Turf

We shouldn’t gloat. We shouldn’t spike the football. It might offend the terrorists. That’s what Barack Obama said about the bin Laden raid when he was denying Judicial Watch access to the bin Laden death photos and video.

But kicking sand in the face of our enemies during a “campaign stop” in bin Laden’s one-time adopted home of Afghanistan? No problem.

According to The Associated Press: “In a swift and secretive trip to the war zone, President Barack Obama signed an agreement Tuesday night vowing long-term ties with Afghanistan after America’s combat forces come home. ‘There’s a light on the horizon,’ he told U.S. troops on the one-year anniversary of Osama bin Laden’s death.”

But his message wasn’t really for the troops, was it?

No, Obama was speaking to voters back home, shamelessly squeezing every ounce of political juice he can out of bin Laden’s death: “Aides said the anniversary of bin Laden’s killing was not a focus of the trip,” The AP noted. “But they do not mind that Obama’s mission will serve as a reminder, six months before Election Day.”

And if that reminder wasn’t good enough, the Obama campaign team found a more direct way to drive the message home, with a political advertisement that suggested presumptive Republican presidential nominee Mitt Romney wouldn’t have made the same call to kill bin Laden.

Of course, by seizing center stage in the bin Laden raid, that the president must shove to the side the actual U.S. Navy Seals who captured and killed the al-Qaida leader. And don’t think they haven’t noticed the president’s antics.

As reported by the UK’s Daily Mail: “Serving and former US Navy SEALs have slammed President Barack Obama for taking the credit for killing Osama bin Laden and have accused him of using Special Forces operators as ‘ammunition’ for his re-election campaign.”

The Daily Mail then quotes one currently serving U.S. Navy SEAL:

“Obama wasn’t in the field, at risk, carrying a gun. As president, at every turn he should be thanking the guys who put their lives on the line to do this. He does so in his official speeches because his speechwriters are smart.

“But the more he tries to take the credit for it, the more the ground operators are saying, ‘Come on, man!’ It really didn’t matter who was president. At the end of the day, they were going to go.”

Obama’s victory lap is just politics, to put it charitably. But it is particularly hypocritical given the fact that the president continues to refuse Judicial Watch’s efforts to obtain the bin Laden death photos and video.

And, unfortunately, he got backing from a federal court on April 26, 2012, when Judge James Boasberg of the United States District Court for the District of Columbia r uled against Judicial Watch’s historic legal effort to gain access through the Freedom of Information Act (FOIA) to photos and videos taken of the deceased Osama bin Laden:

The Court is also mindful that many members of the public would likely desire to see images of this seminal event. Indeed, it makes sense that the more significant an event is to our nation – and the end of Bin Laden’s reign of terror certainly ranks high – the more need the public has for full disclosure. Yet, it is not this Court’s decision to make in the first instance. In the end, while this may not be the result [Judicial Watch] or certain members of the public would prefer, the CIA’s explanation of the threat to our national security that the release of these records could cause passes muster.

Here’s a statement I offered to the press in response:

The court got it terribly wrong. There is no provision under the Freedom of Information Act that allows documents to be kept secret because their release might offend our terrorist enemies. We will appeal.

The Obama campaign seems perfectly happy to “spike the football” on the bin Laden raid to collect votes for his reelection. If Obama is so concerned with how terrorists might react to these photos, then why has he made bin Laden’s death a cornerstone of his reelection campaign?

Barack Obama has taken a schizophrenic approach to the bin Laden raid. On the one hand he doesn’t want to spike the football for fear of offending terrorists abroad while on the other he gloats about it here at home. He can’t have it both ways. And the president’s secrecy on this issue flies in the face of his promises of transparency.

Steven Aftergood, a well-known advocate of open government, responded to the court’s ruling through TPMMuckraker with the following comment:

“I can imagine that there might be some photographs that really are inflammatory or that pose particular security problems. But it doesn’t seem quite credible to me that each and every one of the photographs fits that description,” Aftergood [said], before adding, in regard to the recent court ruling: “It’s disappointing, because this was a missed opportunity for the court to exercise independent judgment and review. Instead what we got was judicial deference to the point of acquiescence, if not abdication.”

I personally fear that, if allowed to stand, this court decision and the reasoning of the Obama administration could give this and future administrations an excuse not to follow the rule of law simply because doing so could offend terrorists. That is the “threat” to our nation, not pictures of Osama bin Laden being buried at sea.

Judicial Watch Files Court Brief in Pursuit of Obama White House Visitor Logs

Thankfully, the courts so far are on our side on this key transparency issue: records of who is visiting the White House. In August 2011, Judicial Watch won a hard-fought and critical victory over Obama White House lawyers when the United States District Court for the District of Columbia ruled that White House visitor logs are subject to the Freedom of Information Act (FOIA).

But did the “super transparent” Obama administration abide by the court ruling, conduct a search as instructed, and turn over the records? No. Instead they decided to fight this issue at the appellate court level.

For this reason, Judicial Watch attorneys were forced to file yet another court brief as part of our three-year battle to force the Obama Secret Service to abide by FOIA law. Here’s a squib from the brief, which you can read in full here:

The Secret Service is before this Court arguing a claim rejected on at least three different occasions. Not only does the Secret Service continue to assert that visitor logs are not agency records, but it also tries to invoke the separation of powers doctrine, in order remove the records entirely from FOIA. Hence, according to the Secret Service, it should not even have to process Judicial Watch’s FOIA request.

The Secret Service has failed to respond properly to a FOIA request for visitor records that the agency creates and maintains as part of its statutory responsibilities and that now three courts have concluded are agency records. Rather than rely on the statutory scheme that Congress put in place when it enacted the FOIA and that provides an agency an opportunity to withhold material that falls within nine specified categories, the Secret Service and the White House attempt to co-opt agency records and place them beyond the reach of this Court and – for the foreseeable future – the public.

Despite its desperate secrecy, the Obama administration is trying to cultivate a reputation for openness regarding these logs because of its voluntary release policy. But here’s the thing: Under this policy, the Obama White House gets to decide what is released and under what circumstances. The release of documents is not subject to court review. And even if they released every single record from the initiation of this policy forward, there are still tens of thousands of visitor logs that are not subject to its arbitrary stipulations.

According to the lower court ruling (issued by an Obama-appointed judge!) all of these records must be subject to the Freedom of Information Act. As JW notes in its brief: “This [volunteer] ‘policy’ is entirely irrelevant here as it does not in any way excuse the Secret Service from its responsibilities under FOIA.”

Now let’s just take a little space to review how we got here.

In August 2009, Judicial Watch filed a FOIA request with the U.S. Secret Service for the White House visitor logs. The Secret Service responded by saying that the logs were “not agency records subject to FOIA.” So Judicial Watch sued to get them.

Shortly after JW’s FOIA request, and quite a bit of negative press attention regarding the Obama administration’s unwillingness to release the logs, the administration announced its “voluntary” release policy, hoping that would put the matter to rest. It did not.

Then the Obama White House extended an invitation to Judicial Watch come over to meet with senior White House officials led by Norm Eisen, who was Special Counsel to the President for Ethics and Government, in order to discuss our pursuit of the logs.

The visit was largely a waste of time. In exchange for some minor concessions on the logs, the White House wanted Judicial Watch to praise its commitment to transparency. At the same time, we were told White House lawyers would not abandon their contention that the visitor logs were not subject to FOIA. If the Obama White House thought we would be intimidated or “bought off,” they were sadly mistaken.

We said “no deal” and took them to court. And on August 17, 2011, we earned a huge victory when the Judge Beryl Howell issued a ruling in our favor:

[T]he 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.

The court also rejected the other assorted claims made by the Obama administration in an attempt to keep stonewalling. The Obama administration appealed, and here we are.

Once again, I want to congratulate our legal team for its persistence and its acumen. If it seems like I’m a broken record on this point, it’s because our attorneys do such an incredible job facing an uphill battle against the government, which is a very powerful (and well-funded) adversary.

We hope that the appellate court affirms previous court rulings and orders the release of the White House visitor logs.

Documents Uncovered by Judicial Watch Raise Concerns About Use of Drug for Military Personnel

Shortly after Staff Sergeant Robert Bales reportedly attacked and murdered 17 Afghan civilians on the night of March 11, 2012, a component of the U.S. Army issued an emergency call to complete a safety review of the anti-malaria drug mefloquine “within six days.” (The review had been initiated in January 2012.)

Why was the Army so eager to complete this review? Was the Army prompted by the alleged erratic and murderous behavior of one of its soldiers? Records recently obtained by Judicial Watch might just shed some light on the matter.

This week we received documents from the Food and Drug Administration (FDA) detailing more than 2,000 episodes of serious adverse reactions caused by the anti-malaria drug, mefloquine hydrochloride, commonly known as Lariam® during the past 15 years. Of 87 reported deaths associated with the drug, 39 were recorded as suicides and 12 were homicides.

The documents, which we received pursuant to a March 26, 2012, Freedom of Information Act (FOIA) request submitted to the FDA, include details from the agency’s Adverse Event Reporting System (AERS) identifying persons treated with mefloquine from November 4, 1997, through March 28, 2012, and the specific reported reactions to the drug. In addition to the reported deaths, reported reactions included hallucinations, panic attacks, depression, paranoia, anxiety, confusion, mental disorder, delusion, hemorrhaging, and numerous other serious disorders.

Long known for its severe neurological side effects, mefloquine was supposedly removed as the drug of choice in the treatment of malaria by the Department of Defense (DOD). In a September 2009 policy memorandum, the DOD stated that mefloquine was to be prescribed only in limited cases where other drugs, such as doxycycline and mallarone, were considered unlikely to be effective.

Importantly, mefloquine was specifically prohibited in the treatment of patients with head injuries, and in particular, a TBI (traumatic brain injury). It is also contraindicated for patients with post-traumatic stress disorder.

Nonetheless, the documents obtained by Judicial Watch indicate clearly that mefloquine is still prescribed, even though its use has decreased since the September 2009 memorandum limiting its use was issued. In the field, medics apparently do not necessarily need to follow such policy recommendations by the U.S. Army and U.S. Central Command (CENTCOM).

Now, how does this all relate to Sergeant Bales’ rampage which allegedly led to the deaths of 17 Afghan citizens, including four women and nine children?

While the DOD has neither confirmed nor denied that Sergeant Bates took mefloquine, citing medical privacy concerns, his attorney, John Henry Browne, told CNN that he “would not be surprised” if Bales took it.

According to The Huffington Post: “The Pentagon is in the midst of a widespread review of the military’s use of a notorious anti-malaria drug after finding out that the pills have been wrongly given to soldiers with preexisting problems, including brain injuries such as the one sustained by the U.S. soldier who allegedly massacred 17 civilians in Afghanistan…[T]he initial review was ordered in January. After the massacre, on March 20, one part of the Army issued an urgent call to complete the Jan. 17 request from Woodson within six days.”

At a minimum, the timing of this “urgent call” is worth investigating, particularly in light of the fact that Bales reportedly suffered a traumatic brain injury in Iraq in 2010. If this is true, then DOD policy would have proscribed against administration of the drug to Bales.

But regardless of whether Sergeant Bales was administered mefloquine, our documents clearly show that the DOD has been lax in policing the use of this dangerous drug in the treatment of service men and women. And given the seriousness of the side effects documented in these reports, the Pentagon should quickly consider halting the drug’s distribution to our troops.

Until next week…