Like all parents, while raising three children I looked for a myriad of means for them to recognize the most moral and ethical way in which to conduct themselves. Especially as they reached the age of adolescence, I tried to instill in them a simple rule of thumb for proper behavior as they increasingly carved out a life of their own -- specifically, I told them that as you find yourself about to do or say something, ask yourself: "what would my mother think of my conduct if she was sitting right here?"
During my 35 years of Federal service, I used a similar approach when dealing with my fellow public servants -- specifically, I would often ask them: "how would what you are saying or proposing look on the front page of the Washington Post?" (Keep in mind this was back in the pre "pay-to-play" days when the Washington Post engaged in real investigative journalism).
I raise these aphorisms in reaction to the lawsuit announced today by Citizens for Responsibility and Ethics in Washington (CREW) against the Department of Homeland Security based on the refusal of the Secret Service to provide CREW with White House visitor records under the Freedom of Information Act (FOIA). Specifically, CREW is seeking records of visits by top health care executives in an effort to learn the extent to which these industry players may have influenced the administration’s health care policy.
There are a multitude of reasons to be concerned with this refusal of the Obama administration to adhere to its own standards of transparency and openness in government (h/t Glenn Greenwald). However, the most significant grounds for extraordinary concern is the reference in the Secret Service's reply to CREW in which they expressed the concern of the Obama "Department of Justice that disclosing some or all of the requested records could reveal information protected by the presidential communications privilege," a verbatim defense of the Bush Justice Department in similar situations.
The concept of privileged presidential communications dates back to Nixon v. United States and Nixon v. Administrator of General Services. At the time, the Supreme Court grounded the privilege in the need for candor in executive branch decision-making and in the supremacy of each branch within its own assigned area of constitutional duties. It is noteworthy that these cases had as their roots demonstrably criminal conduct on the part of the President; conduct which ultimately required a pardon by the President's successor in order to avoid accountability in a court of law.
In a round about way, the District Court for the District of Columbia reinforced the concept of presidential communications privilege when the General Accounting Office (GAO) refused to appeal the District Court's decision in Walker v. Cheney in which the court claimed an inability to "step in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action."
From my perspective, perhaps, in extraordinarily unusual and rare circumstances, a case may be made, at least theoretically, that our nation would be grievously harmed if the President's source of "candid" advice was to be revealed (e.g. if it turned out that Russian President Dmitriy Anatolyevich Medvedev was providing "candid" advice to President Obama as to how to deal with Russian Prime Minister Vladimir Putin). Other than that, I find it difficult to understand how it is in the public's interest to maintain opaqueness vs. transparency as to whom the President is receiving advice on subjects of grave importance to the nation's well-being.
Whether in dealing with energy issues in the Bush/Cheney administration or health care issues in the Obama administration, a consistent argument for both Bush and Obama appears to be the absolute defense of executive power as an end in and of itself. This notwithstanding the fact that the government's power, as we all know, emanates from the people -- and it is entrusted into the custody and care of our nation's leaders in order to promote the common good.
For neither the Bush/Cheney nor Obama administrations has ever provided an argument to the effect of how the common good is best served by keeping secret who visits the Oval Office in order to provide direct advice to the President on issues of grave national importance. Rather, the DoJ under both administrations consistently argues from the perspective of some abstract concept that the President or the Vice President would not be able to expect to receive candid advice from others unless they can assure them of complete confidentiality -- that others, to include the American people, would be denied for as long as conceivably possible knowledge as to what was discussed in the Oval Office.
From my perspective, as well as I believe that of history, if someone who has been invited into the Oval Office refuses to provide "candid" advice to the President unless assured that the American people will not learn of it -- that person probably should not be invited into the Oval Office in the first place. History is replete with examples of how our nation's blood and treasure has been squandered as a direct result of "candid" yet totally "bone-headed" advice. Even if one was to subscribe to the concept of presidential communications being privileged, it is just that, a privilege -- something which may exist in the abstract but does not need to be invoked at the drop of a hat. In fact, even if you believe that such a privilege exists, its reflexive invocation no matter the circumstances actually serves to diminish it.
Transparency and openness in government is not an abstract concept to be invoked when convenient. Rather, at it's root is the concept that our government will make better and more informed and more enlightened decisions when it knows that the decision-making process is transparent and visible to all Americans.
As such, Attorney General Holder, what in the world were you thinking when you allowed your Department to mindlessly invoke the concept of privileged presidential communications in this instance? Even if you believe you can invoke such a privilege, it does not follow that you should; especially when it is directly contrary to the expressed goals and aspirations of the President's administration. Whatever the courts may decide, shame on you!
And President Obama -- as long as you would not mind your own mother, if she was alive today, being aware of the advice and counsel you received in the Oval Office with respect to health care, why would you object to the American people being equally aware? If you would not want your mother to know, why did you allow those individuals into the people's Oval Office in the first place?
Update: The Obama administration released Wednesday night, just prior to the President's press conference on health care reform, a list of 15 health-care lobbyists and senior executives who have visited the White House to discuss health-care reform. CREW said in a statement that the administration's letter "in no way" fulfills the group's request, which was for the visitor logs themselves. "Releasing some records because it is politically expedient to do so is not transparency," the group said. I agree. Let the records speak for themselves. Furthermore, the Obama Justice Department must repudiate the premise that, however dubious the claim of privileged presidential communications may be, it does not pertain to White House visitor records maintained by the Secret Service.
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