Nicholas C. Arguimbau

Houston, The Economist "Secret government: America against democracy," http://www.economist.com/blogs/democracyinamerica/2013/07/secret-government is a compelling and scary analysis of secret government in America - a nation that has become a caricature of ithe open government President Obama promised when he came to office. There is nothing new about broken campaign promises. Obama, however, has taken that many steps farther. He offered us a vision in 2008 of a nation of open government, democracy operating as it was designed to operate. Reality is now so stunningly different that his maintenance of the same vision has become virtually psychotic. When President Obama was running for office, he promised that his first acts in office would be to issue executive orders adopting a policy of transparency for his presidency, and ease of access to presidential documents. . He clearly identified the documents by which his intent on the subject was to be assessed. As Houston notes, Obama had firmly announced,

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government

If we were going to believe in anything about Mr. Obama, it was in his policy of transparency. When the executive order issued, the Huffington Post declared:

President Obama also said yesterday, "Transparency and rule of law will be the touchstones of this presidency." His first executive order is a decisive step forward toward both, and a breath of fresh air after eight years of presidential arrogance.

That is indeed what we were all wishing for, but Houston has a cautionary word,

What happened? Is it naive to think Mr Obama really believed this stuff? I'll admit, with some embarrassment, that I'd thought he did believe it. But this "commitment" has been so thoroughly forsaken one is forced to consider whether it was ever sincere.

This writer prides himself on political realsim, but there is no avoiding Houston's question and the embarrassment, not just "some." I remember being confident that a man who had been a community organizer apparently in the Saul Alinsky mold was a good bet, but somehow his receipt of $75 million from Wall Street had escaped me. So had he ever been sincere? Unfortunatly, we need go no further than the documents themselves to realize that no, his commitment was never sincere. Let's start with the last sentence of the executive order, the one immediately above Mr. Obama's signature, the one he, as a Harvard-trained law professor could not have ignored no matter how little attention he gave to the rest of the order's details:

This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

This is like the fine print of a consumer sales contract, in the middle of page 19. Except it's boldface, right where you'll see it, EXCEPT THAT THE READERS DIDN'T READ. To paraphrase, the order has no legal effect. NONE WHATSOEVER. If you think it gives you or anyone else some rights, IT DOES NOT If you think it allows you to sue if it is ignored, IT DOES NOT.

The same is true of President Obama's "Transparency and Open Government" memorandum, purporting to accomplish exactly that in all the executive agencies. It sounded wonderful. Its only problem was its last paragraph, immediately above his signature, where he would have to pause and read when he signed:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Exactly the same words. A strange echo.

If you are sincere in your intent in doing a piece of legal writing, you do everything to assure that the courts will perceive that they have no choice but to do as you intend. This the exact reverse. So Mr. Obama knew and said when he issued his promised executive order on Presidential privilege and and the memorandum mandating transparency, that they were "not intended to and did not" mandate the sort of open government he had promised. No he was not sincere, except that he laid out his insincerity for all to see. The mysteries for all ages are (1) Why did he make it obvious? (2) Why were we still blind?

The ultimate in hypocrisy, publicly acknowledged on the first day of his Presidency. What fools we are!

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Nicholas C. Arguimbau is an environmental and death penalty lawyer who has come home to rural Massachusetts after 34 years in California.