Judge Chastises Obama Administration for Using “Secret Law” to Withhold Documents

Friday, December 20, 2013
Judge Ellen Segal Huvelle (photo: Charles Dharapak, AP)

The Obama White House has been ordered (pdf) by a federal judge to release a copy of an unclassified presidential directive after it tried to use “secret law” to keep it out of the hands of a government watchdog group.


U.S. District Judge Ellen Segal Huvelle also admonished the administration for the “unbounded nature” of its claim and thinking it had a “limitless” view of its power to withhold presidential communications from the public.


“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,’” Huvelle wrote in her opinion.


The case began after the nonprofit Center for Effective Government filed a lawsuit under the Freedom of Information Act to obtain a copy of Presidential Policy Directive 6, which deals with U.S. foreign aid (pdf).


The group argued that “PPD-6 is not protected by the presidential communications privilege because it was not made in the course of making decisions, but instead is the final decision itself….”


Huvelle, who was appointed to the federal bench by President Bill Clinton, made a point of personally examining the document rather than rely on the Obama administration’s characterization of it.  After doing that, she determined that it “is not ‘revelatory of the President’s deliberations’ such that its public disclosure would undermine future decision-making.”


The White House insisted it could withhold the document, even though it was “a widely-publicized, non-classified Presidential Policy Directive,” according to Huvelle.


She also noted: “Never before has a court had to consider whether the [presidential communications] privilege protects from disclosure under FOIA a final, non-classified, presidential directive.”


Julie Murray, an attorney with Public Citizen and counsel for the Center for Effective Government, applauded the decision.


“We are pleased to see that the court recognized the government’s position in this case for what it is: a remarkable and unlawful attempt to keep secret a broad federal policy,” she said in a prepared statement.


“The court's decision is a resounding win for the principle of government openness and a reminder to the Obama administration that its commitment to transparency must come not just in words, but in deeds,” Murray added.

-Noel Brinkerhoff


To Learn More:

Court Rebukes White House Over “Secret Law” (by Steven Aftergood, Secrecy News)

Judge Orders Release of Presidential Policy Directive (Center for Effective Government)

Memorandum Opinion: Center for Effective Government v. U.S. Department of State, et al. (U.S. District Court for the District of Columbia) (pdf)

Obama Administration Hiding Details of Presidential Policy Directives (by Matt Bewig, AllGov)

11 Secret Documents Americans Deserve to See (by David Wallechinsky, AllGov)           

Classified Documents on the Rise Despite Obama Talk of Transparency (by Noel Brinkerhoff and David Wallechinsky)


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