DOJ Wants Ability To Lie About Documents Requested Via The Freedom of Information Act!

[Jake Martinez]

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Posted PJ Media-By Patrick Richardson-On November 4, 2011:

“UPDATE: Since this piece was written, the Department of Justice has backed down from the proposed rule change described herein, the Daily Caller reports:

“The Department of Justice has canceled a controversial planned revision to Freedom Of Information Act (FOIA) rules that opponents said would have allowed federal agencies to lie about the existence of records.
In a letter to Republican Sen. Chuck Grassley on Thursday, the DOJ wrote that the proposed rule “falls short” of its commitment to transparency, and it “will not include that provision when the Department issues final regulations.”


As part of larger revision of FOIA practices, the proposed rule would have allowed federal agencies to deny the existence of records when applying an exclusion, even if the records did exist.”

Which is all well and good, so far as it goes. The problem here is there’s nothing stopping them from proposing this rule again when some larger issue is obscuring it. Legislation is rarely a good solution, but may be the right one in this case.

Fox News reported last week that the Obama administration is promulgating a new rule which would allow Justice Department officials to lie about whether or not records exist when asked for as part of a Freedom of Information Act request:

“A longtime internal policy that allowed Justice Department officials to deny the existence of sensitive information could become the law of the land — in effect a license to lie — if a newly proposed rule becomes federal regulation in the coming weeks.

The proposed rule directs federal law enforcement agencies, after personnel have determined that documents are too delicate to be released, to respond to Freedom of Information Act requests “as if the excluded records did not exist.”

An interesting position from “the most transparent administration ever.”

Their reasoning for this new policy is interesting as well, from an administration, which has repeatedly slammed its predecessor as being secretive:

“Justice Department officials say the practice has been in effect for decades, dating back to a 1987 memo from then-Attorney General Edwin Meese.”

In that memo, and subsequent similar internal documents, Justice Department staffers were advised that they could reply to certain FOIA requests as if the documents had never been created. That policy never became part of the law — or even codified as a federal regulation — and it was recently challenged in court.

Earlier this year, in a case involving the Islamic Council of Southern California brought against the FBI after the plaintiffs learned about the existence of documents denied by the FBI, a federal judge in California expressed great concern about the agency using the internal policy not only in response to the FOIA but to mislead the court.

“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 in a stinging rebuke.

According to Chris Farrell, Judicial Watch director of research, this ability has somewhat existed for decades, but was generally handled in one of two ways. (Judicial Watch is the largest and most frequent FOIA litigator in the country, and often handles PJ Media’s FOIA litigation.)

Rarely, the agency receiving the FOIA would give what is known as a “Glomar response,” referring to theGlomar Explorer, which the CIA used to recover a sunken Soviet submarine. In other words: “We will neither confirm nor deny the documents exist.”

The other, far more common, method, Farrell said, is to generate what is known as a “Vaughn Index.”

A Vaughn Index is a list of the documents generated by a FOIA search with attached reasoning for any denials: “Yes we have the records, but we’re not giving them to you, and here’s why.”

According to Farrell, now they’re seeking permission to affirmatively lie to the American people:

“In theory down the road you could go back and see them after they were no longer classified. This is wildly different. They had an opinion that said they could do this, but it wasn’t a policy.”

Farrell notes that, should this rule pass it would make lying in response to a FOIA request or FOIA litigation legal — as in not perjury:

“There are things which are technically legal, but which are atrocious and that’s the direction they’re going down.

This is, of course, nothing new for an administration, which has taken nearly two years to generate four blank pages on a routine FOIA request asking for highly routine information.”

Farrell was perhaps more blunt:

“The most transparent administration in history is going out of the way to be opaque. It’s Orwellian, it’s circular double talk. The law that exists is more than adequate (to preserve secrecy when needed.) They don’t have the guts to do this legislatively so they do it by regulation.”

From Farrell’s point of view — and mine — this is deadly dangerous stuff from the standpoint of the health of the republic, coming as it does while Obama is signing yet more executive orders:

“It’s an incremental slide down the slope. It’s a corrosion of the public’s trust,” he said. “If the government is giving itself permission to affirmatively lie to you, how can you ever have accountability?”

There is some hope this egregious policy will not become a federal regulation with the force of law. Even the ACLU — not the most conservative of organizations, nor exactly enemies of the current administration — is howling bloody murder. According to Fox, there was so much pushback after the original public comment period that the proposed regulation was reopened for public comment a second time.

With supreme irony that is apparently lost on them, the DOJ is claiming their move to destroy transparency … has been open and transparent:

“Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, said the entire consideration process for the proposal “has been open and transparent.”

She also notes that sensitive information requires special consideration.

“To ensure that the integrity of the exclusion is maintained, agencies must ensure that their responses do not reveal the existence of excluded records,” Pustay said.

Of course, that’s what the aforementioned Glomar response is for. Also left aside is who gets to decide what an excluded record is. Given this administration’s history of excluding even the most innocuous records on the flimsiest of pretexts, it would seem imprudent at best to give them more ability to do so.”

Source:

http://pjmedia.com/blog/doj-proposes-lying-to-american-public-then-...

Note: The following articles and/or blog posts relate to this disturbing issue-You Decide:

I. WH Rejects Subpoena Request For Solyndra Docs!

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The Washington Examiner-By Philip Klein Senior Editorial Writer-On November 4, 2011:

“President Obama’s attorney sent a letter to Congressional investigators on Friday, saying the White House would not cooperate with a subpoena requesting documents related to its doling out a $535 million loan guarantee to now bankrupt solar panel manufacturer Solyndra.

“I can only conclude that your decision to issue a subpoena, authorized by a party-line vote, was driven more by partisan politics than a legitimate effort to conduct a responsible investigation,” Obama’s counsel, Kathryn Ruemmler, wrote in a letter to the top Republicans on the House Energy and Commerce committee. (Read Ruemmler’s full letter here).

Committee chairman Rep. Fred Upton, R-Mich, blasted the White House response:

“We have been reasonable every step of the way in this investigation, and it is a shame that the Obama Administration and House Democrats continue to put up partisan roadblocks to hide the truth from taxpayers. Solyndra was a jobs program gone bad, and we must learn the lessons of Solyndra as we work to turn our economy around and put folks back to work. Our judicious and methodical work over the last eight months has garnered tens of thousands of pages of documents from DOE and OMB that have proven we are on the right track. Now, we need to know the White House’s role in the Solyndra debacle in order to learn the full truth about why taxpayers now find themselves a half billion dollars in the hole. The White House could have avoided the need for subpoena authorizations if they had simply chosen to cooperate. That would have been the route we preferred, and frankly, it would have been better for the White House to get the information out now, rather than continue to drag this out. Our request for documents is reasonable - we are not demanding the President’s blackberry messages as we are respectful of Executive Privilege. What is the West Wing trying to hide? We owe it to American taxpayers to find out.”

Source:

http://campaign2012.washingtonexaminer.com/blogs/beltway-confidenti...

II. White House Fires Back at 'Overboard' Subpoena on Solyndra Documents!-Posted on FoxNews.com-By Fox News' Ed Henry-On November 4, 2011:

http://www.foxnews.com/politics/2011/11/04/white-house-fires-back-a...

III. Democrats rally support against Republican bid to overturn FCC net neutrality rules!-Posted on The Daily Caller-By Josh Peterson, Tech Editor-On November 4, 2011:

http://dailycaller.com/2011/11/04/democrats-rally-support-against-r...

IV. The Government Can ‘Seize Control’ On November 9, 2011 And ‘There Is Nothing We Can Do!-Posted on The Blaze-By Tiffany Gabbay-On October 24, 2011:

http://www.theblaze.com/stories/glenn-beck-test-of-emergency-broadc...

V. DOE Caught Removing Company’s Name From Old Press Releases!-Posted on The Glaze-By Becket Adams-On October 20, 2011:

http://www.theblaze.com/stories/energy-department-caught-trying-to-...

VI. FCC: Your Internet belongs to us!-Posted on The Daily Caller-By Tina Nguyen, The Daily Caller-On September 23, 2011:

http://dailycaller.com/2011/09/23/fcc-your-internet-belongs-to-us/

VII. Government to Monitor Social Networks For “Extremist Propaganda”!-Posted on Prison Planet-By Paul Joseph Watson,
Prison Planet.com-On August 4, 2011:

http://www.prisonplanet.com/government-to-monitor-social-networks-f...

Note:  My following blog posts contain numerous articles and/or blog posts and videos that relate to this disturbing issue-You Decide:

Nearly 80 percent don’t trust the government!

http://weroinnm.wordpress.com/2010/04/19/nearly-80-percent-don’t-tr...

The FCC Should Not Interfere With The Internet!

http://weroinnm.wordpress.com/2010/01/13/the-fcc-should-not-interfe...

Is it important to understand the Marxist assault on the foundations of our system?

http://weroinnm.wordpress.com/2011/01/27/is-it-important-to-underst...

Note:  If you have a problem viewing any of the listed blog posts please copy web site and paste it on your browser. Be aware that some of the articles and/or blog posts or videos listed within the contents of the above blog post(s) may have been removed by this administration because they may have considered them to be too controversial.  Sure seems like any subject matter that may shed some negative light on this administration is being censored-What happened to free speech?-You Decide.

Please support the cause to get our country back. The following website and video provides you with the specifics of how you can help:

Veteran Defenders of America’s Declaration To Restore The Constitutional Republic:

http://www.veterandefenders.org/

Video: Declaration to Restore the Republic!-Posted on YouTube.com-By arnierosnerOn October 9, 2011:

https://www.youtube.com/watch?feature=player_embedded&v=MYycZOC...

“Food For Thought”

God Bless the U.S.A.!

https://www.youtube.com/watch?v=Q65KZIqay4E&feature=related

Semper Fi!

Jake