Judicial Watch is exposing the emptiness of open-government promises by President Obama and Attorney General Eric H. Holder Jr. These Democrats have stiffed the legal public-interest group’s Freedom of Information requests related to the Justice Department’s dismissal of a voter-intimidation case against members of the New Black Panther Party. Judicial Watch’s Dec. 7 filings reveal the false basis for the administration’s novel claims of “privilege” against disclosure.
Judicial Watch says Justice has withheld “approximately 80 documents in their entirety.” The department claims many are protected by the “deliberative process privilege.” That exemption from disclosure is intended to provide for what the administration calls “a more fulsome decision-making process” without fear of staffers being embarrassed by suggestions they made merely to examine all sides of an issue.
Courts long have established that this privilege applies only to memorandums that are “pre-decisional.” Once a decision has been made and enacted, the deliberative process has ended. Many of the unreleased documents were created after Justice ended the Black Panther case and thus clearly were not part of the deliberative process. Judicial Watch bolsters its common-sense argument by citing the Supreme Court precedent in NLRB v. Sears (1975): “Communications made after the decision and designed to explain it are not privileged.” Case closed.
The disputed documents remain important for understanding how the Black Panther case was bungled and also for examination of the more serious issue of whether Mr. Holder’s team as a matter of policy shows a “hostility to race-neutral enforcement” of the laws. On another level, what’s highly disturbing is what Judicial Watch President Tom Fitton calls the Obama administration’s “contemptuous attitude” toward the public’s legal rights to government transparency. Claiming pre-decisional privilege for actions taken after a case is over is contemptuous of the public’s right to know.
Mr. Obama and Mr. Holder repeatedly have promised what the president called “an unmatched level of transparency, participation and accountability across the entire administration.” Mr. Holder likewise advertised “a presumption of disclosure to all FOIA requests.” That Holder quote is from March 15. The next day, Associated Press ran a story that the liberal Huffington Post headlined “Obama’s broken promise: Federal agencies not more transparent under Obama administration.” By August, the left-leaning Sunlight Foundation headlined a report saying the White House “Abandons commitment to transparency.” On Dec. 8, Sunlight Executive Director Ellen S. Miller concluded, “Simply put, the president’s commitment to transparency is not yet living up to its full potential.”
On matters large and small - from the dismissal of inspectors general to the identities of Justice Department lawyers who represented suspected terrorist detainees and to the myriad issues stemming from the Black Panther investigation - this administration has turned Nixonian stonewalling into a political fortress of obfuscation. Federal District Judge Reggie B. Walton, who is overseeing the Judicial Watch case, shouldn’t allow it. The judge should personally examine the documents in question and release those for which the privilege claims are spurious.