PUBLIC INFORMATION -- The Washington Post's soon-to-depart blogger Dan Froomkin notes that "the Obama Justice Department yesterday put forth an new legal
argument, one that even the Bush team might not have had the gall to
employ. Call it the Daily Show disclosure exclusion."
Yes, a Justice Department lawyer actually argued to a federal
district court judge that there should be an exemption from Freedom of
Information Act disclosure rules for documents that would subject
senior administration officials to embarrassmentas in on late-night
This is not just wrong, it's perversely wrong. By contrast, a good rule of thumb would be: The more embarrassing, the more we need to know. The Justice Department and the White House should be forced to renounce this assertion immediately.
And if this wasn't bizarre enough, consider the irony that in the
case at hand, the Obama Justice Department is fighting the release of a
transcript of former vice president Dick Cheney's testimony to special
prosecutor Patrick Fitzgerald about his role in the outing of Valerie
Plame as a CIA agent.
And guess what else? The Obama team relied extensively on a legal opinion (via Emptywheel)
authored by Stephen Bradbury, the utterly discredited head of the
Office of Legal Counsel whose other writings included memos
outrageously asserting that torture was legaland that Karl Rove had absolute immunity from congressional oversight.
In his memo, Bradbury described the information in question:
Portions of the withheld documents reflect or describe
frank and candid deliberations involving, among others, the Vice
President, the White House Chief of Staff, the National Security
Adviser, the Director of the Central Intelligence Agency, and the White
House Press Secretary. These deliberations concern, among other things,
the preparation of the President's January 2003 State of the Union
Address, possible responses to media inquiries about the accuracy of a
statement in the President's address and the decision to send
Ambassador Joseph Wilson on a fact-finding mission to Niger in 2002,
the decision to declassify portions of the October 2002 National
Intelligence Estimate, and the assessment of the performance of senior
White House staff.
OK, right this second, I can't think of a single document that I wantor deserve to havemore.
And yet, as R. Jeffrey Smith chronicled in The Washington Post this morning:
[C]areer civil division lawyer Jeffrey M. Smith,
responding to Sullivan's questions, said Bradbury's arguments against
the disclosure were supported by the department's current leadership.
He told the judge that if Cheney's remarks were published, then a
future vice president asked to provide candid information during a
criminal probe might refuse to do so out of concern "that it's going to
get on 'The Daily Show' " or somehow be used as a political weapon.
This is yet another example of Obama's lawyers blatantly violating the president's promise not to "protect information merely because it reveals the violation of a law or embarrassment to the government."