President Obama has become something not even his harshest critics would have predicted before the 2008 election – the most secretive chief executive in memory. No prior occupant of the Oval Office ever went before a federal judge and claimed an executive privilege to issue a presidential directive as a “secret law” governing every American citizen but that is available to be read only by his closest advisors. The president who promised at the outset of his White House tenure that his would be “the most transparent administration in history” has now been unmasked as the very opposite of what he vowed.
Incredibly enough, issuing secret laws is exactly what Obama claimed the right to do, according to U.S. District Court Judge Ellen Huvelle, who ruled against the president in Center for Effective Government v U.S. Department of State, et. al. Huvelle - who was appointed to the federal bench by former President Bill Clinton - observed in her ruling that “the government appears to adopt the cavalier attitude that the president should be permitted to convey orders throughout the executive branch without public oversight - to engage in what is in effect governance by secret law.” Thus, Huvelle said, “the court rejects the government's unwarranted expansion of the presidential communication privilege at the expense of the public's interest in disclosure under the Freedom of Information Act …”
Obama's claim was made concerning the Presidential Policy Directive on Global Development, which he issued in 2010. The PPD was circulated widely throughout the White House, the State Department and other departments and agencies within the executive branch. The White House even issued a Sept. 22, 2010, fact sheet describing the PPD as the “first of its kind by a U.S. administration,” that “recognizes that development is vital to U.S. national security and is a strategic, economic, and moral imperative for the United States.” Later the same day the fact sheet was issued, Obama described the PPD in a speech before an international summit on trade and development policies as “changing the way we do business.”
But when the Center for Effective Government – a liberal non-profit group that supports transparency in government – submitted an FOIA request for a copy of the PPD, the Obama administration refused to provide it. Huvelle’s ruling came in response to CEG’s suit challenging the administration’s refusal to make the PPD text available to the public.
Gavin Baker, a CEG analyst, told the Washington Free Beacon that Huvelle “had some very cogent things to say about how FOIA was meant to constrain secret law and ensure government does its business in public so the American people can know about it and debate it. I was very gratified to see the judge take the same perspective we have. It was a win for transparency.”
The issue now is how far Obama will appeal Huvelle’s decision, if at all. Making the secret law claim was beyond outrageous, but appealing this decision will make clear that Obama seeks power for its own sake.