by Tom Fitton –
“A president that doesn’t want Americans, under law, to know who his visitors are is a president who doesn’t want to be accountable.”
That’s what I said in a statement to the press in response to a ruling of the U.S. Court of Appeals for the District of Columbia, which found that U.S. Secret Service’s White House visitor logs for people visiting the president’s office are not subject to disclosure under the Freedom of Information Act (FOIA). The disappointing ruling came in a Judicial Watch lawsuit against the United States Secret Service.
As you know, Judicial Watch has been fighting through three presidential administrations – Clinton, Bush and Obama – to force the release of White House visitor logs. Along the way we’ve been both threatened and offered what essentially was a bribe to give up the fight. Always we refuse.
Why so persistent? Here’s how I explained it in my press statement, which contemplates the harmful ramifications of the decision and signals Judicial Watch’s intent to fight on:
“The appellate court decision punches another hole in the Freedom of Information Act, the law which allows Americans to know what their government is up to. We are strongly considering an appeal.
“The legal gymnastics in this unprecedented decision shows that President Obama is not the only one willing to rewrite laws without going through Congress. And this legal fight, in which President Obama is fighting tooth and nail against full disclosure under law of his White House visitors, further exposes his big lie that his administration is the most transparent in history.”
You remember that great Obama proclamation, don’t you?
It came on January 21, 2009, the day after assuming office. President Barack Obama then told his senior staff and cabinet members: “Let me say it as simply as I can: Transparency and the rule of law will be the touchstones of this presidency.”
On September 4, 2009, the Obama White House upped the ante even further, proclaiming to the press: “Today, the President took another important step toward a more open and transparent government by announcing a historic new policy to voluntarily disclose White House visitor access records.” He added, “Americans have a right to know whose voices are being heard in the policymaking process.”
And what have we gotten instead? Nothing but lying, obfuscation and stonewalling. Just ask our investigators – the best in the business – who must endure one trick after another, day after day, all intended to keep the activities of the Obama administration secret.
Obama administration officials hide behind bogus claims of “national security.” They manipulate the FOIA process. They send useless, completely redacted documents in response to requests. They claim no records exist at all, only to subsequently “find” them when courts intervene. They shift requests between agencies in a ridiculous shell game intended to drag out the process. And on and on and on.
With respect to the White House visitor logs, the administration made the ludicrous argument that government records are not government records at all. And the court, in an act of judicial activism, essentially rewrote FOIA law and bought it.
JW’s pursuit of the White House visitor logs has been a particularly important undertaking for the organization. Because these records go to the heart of the problem with respect to the rampant influence peddling that goes on in this city. Who has the ear of the president and what do they want? These records help answer this question.
In the case of the current administration, JW has demonstrated time and time again that radical leftist special interest groups from La Raza to the ACLU to the NAACP are zipping in and out of the Obama White House making their demands known, helping to craft policies that impact the country, and usually not for the better.
If the appellate court decision is allowed to stand, the Obama administration will have succeeded in turning the Freedom of Information Act on its head. Visitors to the Oval Office will come and go under an impenetrable cloak of secrecy. And Obama and his successors will be able to cut backroom deals with shadowy characters far removed from the essential element of public scrutiny. That is what’s at stake.
As Politico’s White House correspondent Josh Gerstein wrote in his report on the decision, “The ruling is also a defeat for an array of major news organizations, the Reporters Committee for Freedom of the Press and CREW. In amicus briefs, they asked the appeals court to uphold the lower court decision and find that the access records are subject to processing under FOIA.”
Gerstein is right on all counts – the ruling is a defeat for the wide array of groups he mentioned. But, he left out the most important group of all: the American people, who must now sit outside the White House gate wondering what is being covertly perpetrated within its confines.
There was one silver lining in the ruling. At least the appellate court did open the records of tens of thousands White House visits that Obama was trying to keep secret. But this is a small consolation if, in the end, this White House – or any White House – is able to conceal information about who is visiting the White House and for what purpose. In the meantime, because of this ruling we may not know who exactly is visiting this president until at least 12 years after he leaves office. Who knows, Chelsea Clinton could be president by then!
As I say, we are considering an appeal, and I will be sure to keep you posted.
Judicial Watch Files Response in Lawsuit over IL Sherriff’s Refusal to Honor ICE Immigration Detainers
On Thursday, Judicial Watch filed a second response in the Circuit Court of Cook County, Illinois, opposing a motion to dismiss our taxpayer lawsuit challenging Cook County Sheriff Thomas Dart’s refusal to honor U.S. Immigration and Customs Enforcement (ICE) immigration detainers or cooperate with ICE in identifying deportable criminal aliens. (Technically, our brief is called a SURREPLY IN FURTHER OPPOSITION TO DEFENDANT’S MOTION TO DISMISS.) This lawsuit, filed in Obama’s hometown, is a good illustration of the Obama Chicago way.
As you may recall, JW’s lawsuit, Brian McCann v. Thomas J. Dart, was brought April 22, 2013 on behalf of lifelong Cook County resident Brian McCann, whose brother, Denny McCann, was run over and killed in June 2011, by an unlawfully present alien who had just completed a two-year term of probation for a 2009 DUI conviction.
The alien, Saul Chavez, was charged with felony aggravated driving under the influence, but was released by Dart from a Cook County jail in November 2011 despite an ICE immigration detainer. In the lawsuit McCann asks the Circuit Court to compel Dart to comply with his legal duties to honor ICE detainers and to cooperate with federal immigration officials. It also asks the Circuit Court to declare the Cook County ordinance to be preempted by federal law.
And what is the response from Dart and his fellow illegal alien sanctuary apologists? The law does not require illegal aliens to be detained, they say. It is merely a request from the federal government that local law enforcement officers consider detaining criminal illegal aliens.
Let’s stop right there and let me ask you this. How often do laws merely “request” that someone adhere to them? Does the general public get to exercise discretion regarding which laws to follow and which to ignore? (I am, of course, speaking right now to anyone who does not work for the present presidential administration which has demonstrated remarkable indifference to the dictates of the Constitution and the rule of law.)
And what does Dart’s legal team rely upon for its bizarre interpretation of federal law? Court precedent? The plain language of the statute? Nope. Their legal argument is based upon another argument made by Obama government lawyers in another unrelated case. Talk about grasping at straws!
You can read JW’s brief in full here. But the following are the key excerpts:
• Defendant asks the Court to take judicial notice of three denials made by government lawyers in a lawsuit currently pending in another court in an attempt to undercut the unambiguous language of a federal regulation [287.7(d)]. The Court should decline to do so…Because Section 287.7(d) (which relates to ICE detainers) is unambiguous on its face, looking to any type of extrinsic material to aid in its interpretation would be error. Referring to ambiguous denials made by defense lawyers as part of a legal strategy in some other, pending litigation would be particularly inappropriate…
• The [Defendant’s] denials also are at odds with decades of history. The Immigration and Naturalization Act (“INA”) authorizes DHS to promulgate regulations designed to implement the objectives of the INA. It plainly effectuates the clear congressional mandate that aliens suspected or found to have committed certain types of criminal acts or terrorism offenses “shall” be taken into federal custody for immigration purposes when released from the custody of LEAs (Law Enforcement Authorities).
• Defendant misses the mark in arguing that the use of the word “request” in Section 287.7(a) somehow turns the legal obligation in Section 287(d) into a purely discretionary matter…
…The word “request” appears only in the fourth and final sentence of Section 287.7(a), which states, “A detainer is a request that such agency advise [ICE], prior to the release of the alien, in order for [ICE] to arrange to assume custody, in situations when gaining immediate physical custody is either impractical or impossible.” A “request” to “advise” ICE can only be read as a “request” for information. It cannot fairly be read as a “request” to “maintain custody” of an alien while remaining true to the actual words of the regulation.
• Construing Section 287.7(d) as a mere “request” also would create an “impracticable or absurd result,” which courts are required to avoid when construing provisions of law…It would mean that, in order for ICE to assume custody of particular, wanted aliens, ICE would have to station federal agents on the steps of jailhouses across the country to wait for them to be released. Such a construction is obviously an impractical, if not absurd, way for ICE to carry out its statutory mandate that certain criminal aliens or suspected criminal aliens “shall” be taken into custody for immigration purposes when released from the custody of LEAs
Sherriff Dart seems to be taking his cues from the top. Where else would he learn to treat the rule of law as “optional” while adopting bizarre interpretations of the law that lead to “impracticable” and “absurd” results?
Unlike Sherriff Dart’s legal team, JW attorneys do indeed reference court precedent – as opposed to legal conjecture — to bolster its argument that the law is binding with respect to the detention of illegal aliens. As noted in JW’s first response to Dart’s motion to dismiss, the court in Galaraza v. Szalczyk held:
Pursuant to [DHS]Regulation 287.7 (d) … because ICE issued a detainer for the plaintiff, the Lehigh County Prison (a ‘criminal justice agency’) was required to maintain custody [emphasis added] of him after he was ‘not otherwise detained by a criminal justice agency’ for a period of not to exceed 48 hours .. in order to permit assumption of his custody by [DHS].”
So, in summary: Judicial Watch attorneys have the plain language of the statute and court precedent on their side. While Sherriff Dart and his lawyers they have legal speculation and no court precedent.
In typical Chicago political tradition, Cook County thinks it is above the law. No wonder our immigration enforcement efforts lie in shambles given that a rogue Sherriff feels it is permissible to obey immigration laws. You would think that the Obama administration would be standing with us, supporting the rule of law, but IL is a so-called blue state and Holder seems only interested in suing states that voted against Obama.
(Judicial Watch’s Illinois lawyer is Christine Svenson of the Svenson Law Offices in Chicago, IL.)
I’ve gone into some legal detail here for you to also illustrate the complicated nature of our litigation against public corruption. We face government lawyers who will use every argument they can to derail our cases. I thank you and all of our supporters for providing us the funding to field a team of staff Judicial Watch attorneys to battle in court for our values and the rule in the law.
Tom Fitton – President