Tuesday, June 07, 2005
Hellerstein is usurping war powers
The key fact about the latest ruling is that it does not include an opinion. The implication is that it is relying on the two earlier opinions that Hellerstein wrote for this case. This is most strange, because the earlier opinions only pressed for the FOIA requested documents to be brought before the court, so that the court could address the substantive questions of national security that the documents raise and determine whether the documents can be released. Now Hellerstein has ordered the documents released without saying a word about the substantive issues. How can this be?
Hellerstein has pulled a bait and switch. The arguments that he used to compel that documents be brought before the court are by implication being used to compel release of the documents. Not that he has been completely dishonest about this. His first Opinion and Order (September 15th, 2005) foreshadowed this intention, and laid out Hellerstein’s argument on the substantive issues, even though they were not then before the court.
The September opinion (at p. 5) noted that the Department of Defense was claiming exemption from the ACLU’s document request under part (b), paragraph (1) of the Freedom of Information Act (FOIA, 5 U.S.C § 552). (b)(1) allows the executive to withhold any information that it classifies as secret for purposes of national defense. This section of FOIA properly defers to the president’s war powers. It does not try to define for the executive what is and is not a matter of national security.
Hellerstein, however, insisted that he couldn’t assess the executive’s claims that documents were being classified for national defense purposes without seeing the documents himself. In other words, he was claiming (in contrast to the wording of (b)(1)) that classification by the executive is not itself enough, but that he, Hellerstein, had to oversee this classification and verify that it satisfies his own judgment of what needs to be kept secret as a matter of national security.
Hellerstein then spells out (at p. 6) his criterion of oversight: “If documents are more of an embarrassment than a secret, the people should know of our government’s treatment of individuals captured and held abroad.” In other words, Hellerstein is asserting from the bench a distinction between public relations and war, a distinction which is oblivious to reality, when we are in the midst of a war that depends crucially on public relations. Hellerstein next cites the Supreme Court’s opinion in United States v. Robel, 389 U.S. 258, 264 (1967), that:
Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this Nation apart.He then notes on his own that: “We are a nation that strives to value the dignity of all humanity.” Ergo, anything that an activist judge deems to be undignified (war?) cannot be a matter of national security!
FOIA does not itself set out any criteria for second guessing the executive’s judgment about what needs to be kept secret for purposes of national defense. Hellerstein has taken this entirely on himself and come up with the most fantastic criterion of judgment. Anything Hellerstein finds undignified is not a matter of national security! Is there even a logical relation between these two quantities? I believe there SHOULD be some court oversight of (b)(1) classifications, to make sure that the executive is not being plainly unreasonable in its claims to national defense secrets in an effort to evade the law, but any such oversight must respect the president’s war powers. It is not given to the courts to determine what is a matter of military necessity, or even to Congress. This is the president’s call, especially in time of war. To respect that presidential power, oversight must be limited only to blocking clearly unreasonable claims to military necessity.
Hellerstein’s foray in September into criteria for deciding what is and is not a matter of national defense is just obiter dicta, not relevant to his order, which was that documents be brought before the court for scrutiny. Only after the documents were produced in court would Hellerstein actually apply judgment about whether the documents were exempt under (b)(1). Now that he has ordered the documents released without opinion, the implication is that this dicta from the September ruling has become ruling opinion. Hellerstein laid out in September the grounds on which he would reject DOD’s (b)(1) exemption claims and now, without further comment, he has rejected DOD’s (b)(1) exemption claims.
Very sneaky. Make sweeping assertions of judicial power to decide what is and is not a matter of military necessity in a ruling where these assertions can slide by because they do not actually do any work, then invoke them later by implication.
The February ruling
Hellerstein’s February 2nd Opinion and Order is a travesty in a different way. After Hellerstein very questionably claimed judicial oversight in September and ordered DOD to bring responsive documents to court, DOD went to plan b, invoking The CIA Information Act (50 U.S.C, §431), which exempts the CIA from revealing even a list of what documents exist, so long as the documents are “operational” materials, related to ongoing operations. Since the documents requested by the ACLU are operational, DOD hoped it could use the CIA Information Act to avoid having to identify the documents in court.
Hellerstein (at p. 9) notes that the Information Act requires the director of the CIA to apply for the allowed exemption. Since this statutory step was not taken, Hellerstein ruled that the Act could not be applied and DOD would have to produce the documents. As in the September ruling, Hellerstein then goes on (pages 9 and 10) to suggest how he will likely rule once the documents are brought before him. The FOIA exemption that the CIA Information Act offers for “operational” materials includes an exception if the materials are relevant to a federal investigation of wrongdoing. Since DOD has been investigating wrongdoing at Guantanamo, the FOIA exemption does not apply. Thus, Hellerstein suggests, he will not be allowing the DOD to withhold any docs from the ACLU on Information Act grounds.
Notice that the exception to the Information Act’s “operational materials” exemption expresses CONGRESS’ opinion of what should and should not be kept secret as a matter of national security. Congress for some reason decided that anything that has the least taint of wrongdoing must be open to America's enemies. Maybe that is why the Constitution leaves it up to the president to be the ultimate arbiter of these things. Because the the Constitution gives it most directly to the executive to determine what is and is not a matter of national security, Hellerstein’s application of statutory law (FOIA and the Information Act) to the DOD’s national security claims in time of war should address the contest between Congress' and the president’s war powers. Instead, Hellerstein only attends to the two congressional statutes, FOIA and the CIA Information Act.
The single consistency throughout all of Hellerstein’s rulings is his refusal to recognize any executive war powers. Even when Congress makes explicit provision for the president to decide what needs to be kept secret for national security, in FOIA (b)(1), Hellerstein jumps in and asserts that he is going to decide for himself what is a matter of national security. In the process, he examples why it isn't a good idea for Judges to try to make national security decisions. If YOU were going to set a criterion for deciding what is a matter of national security, would you come up with “dignity”?
After Hellerstein shot down the DOD’s bid to use the CIA Information Act as grounds for not bringing documents to court, the DOD knuckled under and brought the documents to court. By ordering the docs released, Hellerstein implicitly invoked both of the separate grounds that he had laid out in September and February for ruling against the DOD on the substantive question of whether the docs should be handed over to the ACLU.
In ruling against the DOD’s claim of FOIA (b)(1) exemption, Hellerstein is implicitly invoking his September argument that nothing he, Hellerstein himself, finds “undignified” could possibly be a matter of national security. Here he is placing the judiciary above the executive as a determiner of the requirements of national security. In ruling against the DOD’s “operational materials” claim to FOIA exemption, he is implicitly invoking the exception that Congress built into its Information Act exemption. Here he is placing Congress above the executive as a determiner of the requirements of national security.
Both of these rulings are contrary to Constitution’s clear allocation of war powers to the executive. Worst is the assertion of Judicial primacy. At least Congress is considered to be one of the “war-fighting” branches. It declares and funds the wars that the executive fights, and it did a reasonable job of leaving it up to the executive to determine defense issues in FOIA. The judiciary, in contrast, is not a “war fighting” branch at all. For Hellerstein to set himself up as the arbiter of what is a matter of national defense is a usurpation of presidential power and a perversion of the Constitution.
We elect our presidents to command our war efforts for us. For a judge to usurp presidential power is one of the gravest crimes that can be committed against the republic.
ACLU has additional documents here.