Thursday, October 09, 2014

What Did He Know And When Did He Know It? Still The Relevant Questions

Those were the questions the Watergate committee and the media asked about Richard Nixon's knowledge of the Watergate break in.  He claimed he knew nothing until very late and then when he learned he acted quickly.

Alexander Butterfield told the committee on July 13, 1973 that Nixon taped all his White House conversations.  I was in a closet that I'd made into a darkroom when he said that and it was clear this changed everything.   But then the stalling came.  Executive privilege prevented the White House from handing the tapes to the committee. 

Yesterday, the Alaska Dispatch News and the Alaska Public Media filed suit against Governor Sean Parnell for not releasing emails and other information that would help them understand and report on what Parnell knew about the sexual harassment and general toxic environment at the Alaska National Guard and when he knew it.  The article in today's ADN  says it took the Parnell administration four months to deny the request from the Alaska Public Media and three months to deny the ADN request. 

"Under separate requests, Alaska Dispatch News reporter Lisa Demer and Alaska Public Radio Network reporter Alexendra Gutierrez sought access to guard-related emails to or from Nizich. Because chaplains within the Alaska National Guard had sent their growing concerns about the agency’s toxic climate to Nizich’s personal email account, reporters asked that guard-related correspondence from Nizich’s personal email account also be provided to the media.

In April, during an interview with APRN, Parnell said that once he learned about the communication to Nizich’s personal email account, he directed his top aide to forward any such emails to his state account, where they would then become a public record."
The article offers explanations for the denial:
"In denial letters sent Sept. 26, Ruaro explained several exemptions and laws that allowed the emails to be withheld, including deliberative process and the need to protect “the right to privacy of victims and alleged victims.”
Ruaro also stated that people accused of misconduct also have a constitutional right to privacy when disclosure of the material “could reasonably lead to embarrassment, harm, or retaliation.” Finally, he cited that confidentiality also extends to members of the clergy, in whom victims have confided." [highlight added]

You can read the whole letter denying the material from the governor's chief of staff here.

John McKay's (the attorney for the ADN and APM on this - and, to fully disclose here,  for myself  when I was threatened with legal action if I didn't take down a blog post - takes issue with the governor's reasons for withholding the requested information.  You can see the full document online here.  My numbers correspond with the numbers in McKay's filing.  I've summarized some of McKay's key points responding to the reasons the governor's office gave for denying the requests.
20.  That while state law presumes the public records are disclosable and that doubts should be resolved in favor of disclosure, the governor has taken a narrow restrictive approach, “resolving doubts in favor of secrecy, delaying responses . . .discouraging pursuit of legitimate requests, and otherwise failing to comply fully, timely, and effectively. . ."

21.  Governor is wrongfully withholding documents that would “help explain the circumstances of the NG Scandal . . . [and] would allow the public to better assess the accuracy and candor” of what the Governor says on this.

22.  Didn’t provide an index identifying documents being withheld and the reason for withholding them as required by the law. 

23.  For documents that might be subject to privilege or redaction, Governor has not released those parts that are not subject to privilege or redaction.

24. - 26.  Governor previously told press that the emails to Chief of Staff Nizich would be made publicly available.
While there is room for interpretation, I'd say points 22 and 23 don't leave much wiggle room for the governor. 

The suit asks the court to take nine actions.  Again, I've abbreviated them and you can see the full language here.)
  1. That the court order the governor to turn over the documents without delay.
  2. For documents not turned over immediately because of claims of privilege, that the governor turn over a log of the withheld documents and the specific privilege claimed for withholding each.
  3. Unless the governor moots this request by handing everything over immediately, that the employees of the governor’s office certify to the court that:    
    1. they’ve made a diligent search for the documents requested and
    2. that they've turned over everything, and if not when they were asked to do so by a superior and why they had not
  4. That Chief of Staff Mike Nizich certify that he
    1.  has been directed by the Governor to locate and forward to his state email account emails relating to the Guard in his private email account
    2. He fully complied
    3. If not, why he failed to do so and whether and when he advised the governor of his failure to do so
  5. Order any documents or records relating to the NG Scandal not already turned over be preserved.
  6. Court issue temporary, preliminary and/or permanent injunctive relief against the governor, his office, and anyone working for them, restraining them from further obstructing or delaying or denying access to the relevant documents.
  7. Court enter a declaratory judgment finding the governor’s office  has failed to comply.
  8. Court enter other such relief it deems just and appropriate.
  9. Court award the ADN and Alaska Public Media their costs and attorney fees
I find it ironic that the governor is pleading for the privacy rights, based on the Alaska Constitution, of the accused here, people whose names in many cases have already been before the public,  though he's not shown any concern about those rights being violated for women seeking reproductive health services or for gays and lesbians seeking to get married. 

As the lawsuit says, protected confidential information can easily be redacted and the information not protected should have already been turned over. 

Nixon fought as hard as he legally could to hold on to the tapes. He even ignored suggestions that he burn them. Nixon’s lawyers argued before the Supreme Court that the tapes were protected by executive privilege. On July 24, 1974, the justices decided differently. By a vote of 8 to 0 — Justice William Rehnquist recused himself — Nixon was ordered to turn over the tapes.
Fifteen days later, the president of the United States resigned.  [The whole article is here.  The link in he quote goes to another article on Nixon's resignation.]

The Parnell case is trivial compared to the Nixon case, though for Parnell, in a competitive race for reelection, it could cost him the election if the information shows he knew more sooner than he has so far revealed.  The delays could also just indicate the lack of understanding and ineptness of his staff.  

I've been unusually harsh on this topic of the National Guard because I know that the governor could have and should have taken action much sooner.  I got emails after posting about Katkus' confirmation hearings in 2010 from National Guard folks that were long and credible about the depth of corruption in the guard.  If I got such information based on a brief comment in a longer post, the governor had equally credible reports then too.  I didn't act on it because my correspondents didn't want to give names or specific details.  And I wasn't the man ultimately responsible for the National Guard.  The governor is and was.  Many people's lives were seriously harmed because of the governor's ineffective response to this situation.  And the governor has the long report on the problems with the guard.  All the media are trying to do now, is determine the accuracy of Parnell's declarations that he did all he could with the information he had. 

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