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
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..
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 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.
Don’t miss a beat
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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!