Written by Tom Fitton
The Obama administration has perfected the art of "selective transparency." It releases documents when it serves them and keeps them secret when it does not.
We've seen this happen time and time again. When the Obama administration wanted to undermine enhanced interrogation techniques, it selectively released certain top-secret Department of Defense memos that supported the administration's agenda, while conveniently leaving out those documents supporting the effectiveness of the techniques. (JW was ultimately able to force the release of these records.)
The Obama White House also makes a show of posting some of the Secret Service’s White House visitor log entries, while withholding thousands of others and opposing the logs’ full release in court.
But nowhere has this utter hypocrisy been more evident than in the Obama administration’s approach to the raid that led to the killing of Osama bin Laden.
When the administration wanted to project an image of President Obama as a courageous Commander-in-Chief during an election season, they gave the filmmakers of the movie “Zero Dark Thirty” unprecedented access to classified details regarding the raid. But when JW sought to obtain photos and videos documenting the raid and burial of bin Laden on behalf of the American people, the Obama administration stonewalled.
And unfortunately, an appellate court endorsed this unprecedented secrecy earlier this week.
On Tuesday, a ruling by the United States Court of Appeals for the District of Columbia affirmed a U.S. District Court decision allowing the Defense Department and CIA to withhold 59 images from the raid on Osama bin Laden’s compound and the terrorist mastermind’s burial at sea.
Here’s the statement I offered to the press in response:
The opinion is craven, absurd, and undermines the rule of law. The court seems to acknowledge that the images were improperly classified but gives the Obama administration a pass. The court’s interpretation would allow terrorists to dictate our laws. Americans’ fundamental right to access government information and, frankly, the First Amendment are implicated in this ruling.
As one of the judges on this panel suggested that the Benghazi attack was caused by an Internet video, this decision is perhaps unsurprising. The courts need to stop rubberstamping this administration’s improper secrecy. There is no provision of the Freedom of Information Act that allows documents to be kept secret because their release might offend our terrorist enemies. Our lawyers are considering our next legal steps.
The Appeals Court decision upheld an April 26, 2012, ruling by the District Court denying a FOIA request by JW seeking “all photographs and/or video recordings of Osama (Usama) bin Laden taken during and/or after the U.S. Military operation in Pakistan on or about May 1, 2011.”
To be clear: We did not seek any information that would compromise the national security of the country. (Certainly no details even approaching those provided to the “Zero Dark Thirty” filmmakers.) And yet, the Obama administration withheld the release of these images under the president’s bogus “spiking the football” doctrine, which claims any information that might offend terrorists must be kept secret.
Can you imagine the court endorsing such a policy? A policy that subjects our open records laws to the whims of radical Muslim terrorists?
While ruling against Judicial Watch, U.S. District Court Judge James Boasberg had conceded, “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.”
I couldn’t agree more, which is why the judge’s ruling – and the subsequent appellate court ruling – are an affront not only to Freedom of Information Act law but to the public’s right to know what the government is up to.
As I said in my statement, JW attorneys are reviewing our options and I’ll be sure to keep you up-to-date. Justice was not served by this decision.
In the last installment of the Weekly Update, I said the IRS scandal was “one for the ages” and nothing that has transpired since then has changed my opinion.
As you likely know by now, we learned last week that the Obama IRS targeted Tea Party and conservative organizations seeking tax exempt status and subjected conservative donors to painful and unnecessary audits – an unprecedented level of politicization inside the supposedly non-political federal agency. (Click here to read last week’s Update for the full details.)
This systemic attack on these organizations had a singular effect: to suppress the Tea Party and other critics of the Obama administration during Obama’s reelection 2012 campaign.
This week there have been some major developments as Congress held hearings to get to the truth in this matter, a task made more difficult when the head of the key IRS agency invoked the Fifth Amendment and refused to answer any questions. As reported by The Washington Post:
The head of the Internal Revenue Service’s tax-exempt organizations office, faced with allegations of improper targeting of conservative groups, told a House committee Wednesday that she has done nothing wrong but declined to answer questions, invoking her Fifth Amendment right against self-incrimination.
Lois G. Lerner told the House Committee on Oversight and Government Reform in an opening statement that members of the panel have already accused her of providing false information to Congress…
“I have not done anything wrong,” she said. “I have not broken any laws. I have not violated any IRS rules or regulations. And I have not provided false information to this or any other congressional committee.” But on the advice of counsel, she said, she would not answer questions or testify before the committee.
But here’s the problem for Ms. Lerner with that impassioned statement in self-defense. She just may have forfeited her right to invoke the Fifth Amendment.
Many legal analysts (along with members of Congress) have said that Lerner cannot have it both ways. She can’t issue a statement before Congress professing her innocence in the scandal, even referring to her past testimony, and then clam up and refuse to answer questions. Consider what the Supreme Court has said on the invocation of the Fifth: “It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination…”
It certainly appears that Ms. Lerner, in effect, “took the stand” by issuing her statement. House Oversight and Government Reform Committee chairman Darrell Issa, for his part, plans to bring her back: “We are obligated to bring Lerner back because she did not properly take the Fifth [Amendment],” Issa said according to Reuters. “She clearly chose to make her statements and then not open herself up to even any questioning as to the statement she made.” I’m not confident that much can be done about it legally, but it sure confirms that, practically speaking, the Obama administration has something to hide.
In other developments regarding the question of who knew what and when, this week we also learned that the IRS had conducted its own investigation one year before the Treasury Department Inspector General released the results of its probe. Both investigations came to the same conclusion regarding improprieties, prompting Rep. Issa to chastise the IRS for the crime and the cover-up:
Tempers flared in a House Oversight and Government Reform Committee hearing Wednesday, with members on both sides of the aisle castigating the Internal Revenue Service for targeting conservative groups with special scrutiny, and then hiding the practice from Congress…
“Just yesterday the committee interviewed Holly Paz, the director of exempt organizations, rulings and agreements, division of the IRS,” Issa said. “While a tremendous amount of attention is centered about the Inspector General’s report, or investigation, the committee has learned from Ms. Paz that she in fact participated in an IRS internal investigation that concluded in May of 2012 – May 3 of 2012 – and found essentially the same thing that Mr. George found more than a year later.”
What this means is that it was a well-known fact within the Obama administration that IRS officials were illicitly targeting constitutional government groups six months before the 2012 elections. And yet, IRS officials did not bother to tell Congress, and may have even falsely testified on the matter.
But here’s the million dollar question: Did they tell the president? House Majority Leader Boehner says almost certainly: “It’s pretty inconceivable to me that the president wouldn’t know,” he said on Greta van Susteren’s Fox News program that aired late Wednesday. “I just put myself in his shoes: I deal with my senior staff every day, and if the White House had known about this, which now it appears they’ve known about it for about a year, it’s hard to imagine it wouldn’t have come up in some conversation.”
It turns out that the former IRS Commissioner Douglas Shulman had at least 129 visits to the Obama White House, including over 90 meetings with Obama’s Obamacare Czar Nancy DeParl. Even apart from the IRS scandal, in what world would the head of the IRS visiting the White House so many times be considered appropriate! Obama says he is outraged by the IRS scandal, but his White House advisers are meeting with old Clinton scandal hands in order to devise a public relations strategy to handle the corruption scandal.
Now, while the IRS scandal took center stage in Congress, another scandal also erupted in as we learned the Obama Department of Justice (DOJ) seized phone records from at least five Fox News reporters as part of a supposed criminal probe into leaks inside the Defense Department. As reported by Fox News:
Newly uncovered court documents reveal the Justice Department seized records of several Fox News phone lines as part of a leak investigation – even listing a number that, according to one source, matches the home phone number of a reporter’s parents.
The seizure was ordered in addition to a court-approved search warrant for Fox News correspondent James Rosen’s personal emails. In the affidavit seeking that warrant, an FBI agent called Rosen a likely criminal “co-conspirator,” citing a wartime law called the Espionage Act.
Rosen was not charged, but his movements and conversations were tracked. A source close to the leak investigation confirmed to Fox News that the government obtained phone records for several numbers that match Fox News numbers out of the Washington bureau.
This latest development follows on the heels of news last week that the DOJ seized the records of Associated Press reporters in a DOD leak investigation, a decision AP President and Chief Executive Officer Gary Pruitt called a “massive and unprecedented intrusion”. (The “leaks” in question relate to an AP story last year regarding a CIA operation in Yemen to stop a potential terrorist attack.)
President Obama moved quickly to defend the attack on the First Amendment in the name of national security and then expressed “complete confidence” in embattled Attorney General Eric Holder. He then said in a major defense policy speech that Holder was on top of the issue and would spearhead an initiative to make certain that DOJ activities do not chill the First Amendment.
And then this news hit, courtesy of NBC News:
Attorney General Eric Holder signed off on a controversial search warrant that identified Fox News reporter James Rosen as a “possible co-conspirator” in violations of the Espionage Act and authorized seizure of his private emails, a law enforcement official told NBC News on Thursday.
The disclosure of the attorney general’s role came as President Barack Obama, in a major speech on his counterterrorism policy, said Holder had agreed to review Justice Department guidelines governing investigations that involve journalists.
This led ABC News reported Jonathan Karl to quip that Holder will now be put in the position of investigating Holder! Holder is personally responsible for this dishonest investigation into Fox News and each and every one of the news organization’s sources (or at least the ones that call on the phone).
The attack on Fox News is no surprise to us. We exposed how the Obama White House tried to ban Fox News and then lied about it. Barack Obama hates Fox News so it is no surprise that his corrupt attorney general would personally sign off on a warrant against Fox that is without precedent in the modern era.
Of course, Judicial Watch has been shouting from the rooftop for five years about rampant corruption inside the Obama administration. And while it’s nice to now see that the media is finally paying attention, it will mean nothing if these developments are not accompanied by real accountability, which is Judicial Watch’s mission.
On behalf of all the staff of Judicial Watch, which includes no small number of veterans, I wish all of you a wonderful Memorial Day holiday. As we honor the fallen, who fought and died so that we can remain free, I thought it appropriate to reprint a portion of the May 5, 1868, Memorial Day proclamation (General Orders No. 11) by General John Logan, national commander of the Grand Army of the Republic:
Let us, then, at the time appointed gather around their sacred remains and garland the passionless mounds above them with the choicest flowers of spring-time; let us raise above them the dear old flag they saved from dishonor; let us in this solemn presence renew our pledges to aid and assist those whom they have left among us a sacred charge upon a nation’s gratitude, the soldier’s and sailor’s widow and orphan.
Until next week…
Tom Fitton, President Judicial Watch