Fools We Are!
Economist's Question on Obama's Promise of Open Government, "Is
it naive to think Mr Obama really believed this stuff?" YES.
By Nicholas C. Arguimbau
July 15, 2013
Clearing House - -
The Economist "Secret
government: America against democracy,"
is a compelling and scary analysis of secret government in
America - a nation that has become a caricature of the 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
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
That is indeed what we were all wishing for, but Houston has a
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
This writer prides himself on political realism, 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?
Unfortunately, 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!
Nicholas C. Arguimbau is an environmental and death penalty
lawyer who has come home to rural Massachusetts after 34 years
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