DC District Judge Ellen Segal Huvelle yesterday ordered the Obama Administration to release a copy of an unclassified presidential directive, and she said the attempt to withhold it represented an improper exercise of “secret law.”
The Obama White House has a “limitless” view of its authority to withhold presidential communications from the public, she wrote, but that view is wrong.
“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’,” Judge Huvelle wrote in her December 17 opinion.
“The Court finds equally troubling the government’s complementary suggestion that ‘effective’ governance requires that a President’s substantive and non-classified directives to Executive Branch agencies remain concealed from public scrutiny,” she wrote.
The directive in question provides guidance to agencies in making decisions concerning foreign aid and development. The Obama administration had tried to keep this secret, relying on a doctrine (executive privilege) that typically is used to shield a president’s internal deliberations with his closest staffers. The judge recognized that this argument should not shield from public scrutiny an order conveyed to the furthest reaches of the executive branch.