It was 48 years ago this Fourth of July weekend that President Lyndon B. Johnson signed into law the original two-page Freedom of Information Act (FOIA). LBJ reportedly was reluctant about opening federal records to the public, but he nonetheless promoted it by saying this would be “the most transparent” administration in history.
Just kidding about that last part. I don’t remember LBJ ever using the meaningless mush words of today such as “transparency” or “sustainability.” He ran the government like his personal fiefdom, and everybody who was not comatose at the time knew it.
FOIA became effective a year later on July 4, 1967, a date that would have also seen its immediate repeal had a mix-up not been caught and corrected.
Those were the days when we were not politically divided when it came to having a basic grasp on reality. We all knew LBJ was lying whenever his lips moved, and then we went ahead and elected Richard Nixon for more of the same.
FOIA was fully in effect during Nixon’s first term, and the new disclosure law’s effect on history was essentially zero. Watergate taught us plenty about “executive privilege” but precious little about FOIA compliance.
The reason FOIA has not played much, if any, role in reporting about any presidency in the past nearly half-century is, of course, that the White House is exempt from its provisions and amendments and many of its implementation policies.
So those who make use of FOIA do so at the federal departments and agencies that do fall under its jurisdiction. Congress is also exempt. Those who mine the federal government for information under FOIA are not without their accomplishments, but it takes time.
Personally, I’ve always viewed the federal FOIA are something mostly for lawyers, historians and all the interests who set their tents up alongside the government. FOIA makes obtaining government records long, complicated and expensive. It makes it harder to get people of conscience who work inside the government to just slip documents to those of us who can put them to work.
Nevertheless, I’ve had the honor of working with people more patient and organized than I am who’ve made good use of FOIA as the basis or as an enhancement for investigative reporting. Food safety reporting involves big bureaucracies making millions of decisions involving thousands of players. This kind of subject matter cries out for analysis of data and information. FOIA can be a valuable tool. So, while I am not much of a user myself, I fully support those who do use FOIA to advance the public’s right to know about their government.
And all I could feel was total outrage when I read the “Craig memo” sent out by a White House that operates in more secrecy than anyone with any honest memory can recall while it conducts a propaganda mechanism inside and outside the government that is unmatched in history.
We all knew that before the “Craig memo” surfaced. Now we know that a plan carried out in secret has been more successful that Nixon ever dreamed. “Tricky Dick” failed and was mocked about his plan for newly uniformed “Imperial Guards” around the White House. Now “Mr. Transparency” has overwhelmingly succeeded in sealing off an Imperial White House from the public’s right to information about its government.
For those making FOIA requests, I regret to inform you that this is now really only about history because journalism failed to disclose the existence of the “Craig memo” when it was issued in the early days of the Obama administration more than five years ago.
Until now, those making FOIA requests did not have any way of knowing that “White House equities” could be responsible for delays, retractions or denials of your request.
Gregory Craig, the Beltway lawyer best known for representing Ronald Reagan’s would-be assassin, was President Obama’s lawyer on April 15, 2009, when he sent a memorandum to all department and agency attorneys in the federal government. This was at the same frothy time when the compliant White House media were actually accepting Obama’s word that his administration would be “the most transparent in history.”
But, in secret, federal departments and agencies were being ordered to check with the White House before fulfilling requests for public documents “that may involve” any of those “White House equities.”
Yes, the White House, itself excluded from FOIA compliance, has now inserted itself as a wall between the people and public documents. And, while other administrations used the “wink, wink” and “nod, nod” methods of getting a “heads up” on the release of embarrassing government information, this is way different.
The “Craig memo” is a written order applying to the entire federal government. It is highly damaging, and it was conducted in secret. No amendment to the FOIA in the past 48 years has been more important. (And those are offered and debated in public in something we once called “our republic.”)
I’m really wondering why anyone of Craig’s ilk ever put such an order in writing. One can speculate that someone even back then was unwilling to submit to this travesty unless it was in writing, or was it simply because department and/or agency lawyers could be trusted not to leak it?
If there is enough of the FOIA left, maybe the historians can find those answers.
Oh, one more thing to note. No one seems to have a legal definition of that broad-brush little term “White House equities.” It’s not a FOIA term, was never defined by Craig (who is back to his Beltway stuff), and those who are paid to sing and dance for the White House have declined opportunities to say more. Typical.
The American Civil Liberties Union calls the White House inserting itself into FOIA requests “very troubling.” The “Craig memo” was uncovered by the government ethics group known as “Cause of Action” and came from a federal whistleblower. Various congressional proceedings earlier suspected that the Obama White House was slowing or denying the flow of public information, but, until the “Craig memo,” it could not be proven.
One thing I remember before Nixon resigned was that fear existed across the land that his attempts to use “executive privilege,” the existence of his “enemies list,” and his desire to use the IRS for political purposes might leave behind a permanently corrupted federal government.
It would be easy to end this here by saying I guess it did. But Congress, over President Gerald Ford’s veto, strengthened the FOIA after Nixon left. And there was nothing imperial about Jimmy Carter. Our fears that Nixon did irreparable harm to the body politic subsided over time.
But it’s back now. Taking out FOIA in secret is just another troubling incident like the National Security Agency’s spying on Americans. To paraphrase a founding father, we are giving up too much liberty in name of security, and we are getting neither.
The trappings of an “Imperial Presidency” are unending at the White House. The “Craig memo” is yet another example of the White House’s arrogance and utter disregard for the law.
It was 238 years ago that some rebels in Philadelphia had to remind King George III that governments derive their powers from “the consent of the governed” and “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.”
The “Craig memo” is certainly destructive of FOIA’s ends, and we sadly are at the moment in time when we know the only information coming out of the federal government is that controlled, permitted and approved by the White House.
It means, my friends, that on this this Fourth of July weekend, freedom is trending in the wrong direction again.© Food Safety News