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May 12, 2008

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The Continued Absurdity of the Missing White House Emails Case

Regular MotherJones.com readers may recall that last spring, the White House reported that it may have lost some 5 million emails. Later last year, two non-profits, the National Security Archive (NSA) and Citizens for Responsibility and Ethics in Washington (CREW), sued to ensure the preservation of the emails. (That suit is still pending, and you can read about the whole story on our missing White House emails index page).

During the course of the legal proceedings, CREW filed Freedom of Information Act requests for documents prepared by the White House Office of Administration (OA) that analyzed the scale of the missing email problem. But the White House denied the FOIA requests, making the unique and unprecedented legal argument that the OA is not, in fact, a federal agency and therefore not subject to the FOIA. CREW sued, citing OA's previous treatment as an agency and history of responding to FOIA requests as obvious evidence that the White House argument was ridiculous. That brings us to today, when a DC district court ordered (PDF) limited discovery in order to find out whether OA is, in fact, a federal agency.

You read that right: CREW had to get a court order to gather information to prove that a government agency is, in fact, a government agency.

According to the court order, the FOIA defines an agency as "any establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency," but does not include "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President." In the past, other White House-affiliated offices like the Office of Science and Technology, the Council on Environmental Quality, and Office of Management and Budget have been found to be agencies subject to FOIA. It's quite likely that following discovery, the court will rule that OA is also an agency.

But followers of this story will realize that whether or not OA is eventually ruled an agency is somewhat beside the point. The administration's objective in all this seems to be to delay outside access to documents relating to the missing emails for as long as possible. And with the transitory nature of electronic records and the clock running out on the President's tenure, they won't need to delay much longer. Remember, this entire lawsuit is simply to gain access to documents that will enable the plaintiffs in the main lawsuit to assess the scope of the problem they're suing about. But before long, the emails the White House failed to backup, many of them during the lead up to the Iraq war and the leaking of Valerie Plame's covert identity, may be irreversibly gone. By then, whether or not the OA is an agency will be beside the point.






Comments

Right after WWII, the U.S. executed Japanese who had water boarded U.S. POW’s. We felt it was a war crime worthy of capital punishment. The Japanese counter argued that they were simply trying to prevent a national catastrophe (such as a WMD being dropped on them).

What I find ironic and a double standard is that we now use water boarding at our black sites for the “interrogation” of prisoners. Why do we now feel that it is ok to go against the Geneva Convention, and use torture? We also placed Nazi’s on trial at Nuremburg for committing war crimes and adopted the “Nuremburg Code.”

Yet Eileen Welsome uncovered a grotesque series of experiments in which American atomic scientists turned eighteen unsuspecting citizens into human guinea pigs with tragic results. Fearful that plutonium might cause a cancer epidemic among workers on the Manhattan project, the projects medical doctors embarked on this study. Unsuspecting patients in hospital wards throughout the U.S. were secretly injected with plutonium. Most of these patients would go to their graves without ever knowing what had taken place. Helen Hutchison entered a prenatal clinic in Nashville for a routine checkup and was instead given a radioactive cocktail to drink. Gordon Shattuck, one of several boys at a state school for the developmentally disabled in Massachusetts was fed radioactive oatmeal for breakfast. Dr. Louis Hempelmann enthusiastically supported the plan to inject humans with potentially carcinogenic doses of plutonium. Trusted government officials debated the ethical and legal implication over fifty years ago, demolishing the argument that these studies took place in a less enlightened era. Eileen Welsome won the Pulitzer Prize for “The Plutonium Files,” and the George Polk Award for National Reporting as well as the Selden Ring Award for Investigative Reporting. We would have executed Josef Mengele at Nuremburg for doing this kind of stuff!

Recently the headlines read: “Radiological weapon plan declassified.” In one of the longest held secrets of the Cold War, the U.S. Army explored the potential for using radioactive poisons to assassinate “important individuals” such as military or civilian leaders, according to Robert Burns of AP. Approved at the highest levels of the Army in May 1948, the effort was a well-hidden part of the military’s pursuit of a “new concept of warfare” using radioactive materials from atomic bomb making to contaminate swaths of enemy land or to target military bases, factories or troop formations. The documents released to the Associated Press were heavily censored by the government. One memo from December 1948 outlined the project, and another memo that month indicated it was under way. The main sections of several subsequent progress reports in 1949 were removed by the government sensors. Whether the work migrated to other agencies such as the CIA is unclear. Among the documents finally released to the AP, an Army memo dated Dec 16, 1948, and labeled secret described a crash program to develop a variety of military uses for radioactive materials. Work on a “subversive weapon for attack of individuals or small groups” was listed.

The top priorities listed were:

1. Weapons to contaminate “populated or otherwise critical areas for long periods of time.”

2. Munitions combining high explosives with radioactive material “to accomplish physical damage and radioactive contamination simultaneously.”

3. Air and/or surface weapons that would spread contamination across an area to be evacuated, thereby rendering it unusable by enemy forces.

4. “Munitions for attack on individuals” using radioactive agents for which there is “no means of therapy. This class of munitions is proposed for use by secret agents or subversive units for lethal attacks against small groups of important individuals, e.g. during meetings of civilian or military leaders.”

The project was run by the Army Chemical Corps, commanded by Maj. Gen. Alden H. Waitt, and supervised by a now defunct agency called the Armed Forces Special Weapons Project.

Posted by: Ron Matuska on 02/13/08 at 12:27 PM  Respond

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