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Saturday, May 28, 2005

Order to release Abu Ghraib photos ignores war powers

UPDATE: I have an updated version of this post here. The original post below won't steer you wrong, but it doesn't express the history of the case very well (thanks to my conflating Hellerstein's September ruling with his ruling last week). I recommend the new post.

Total insanity. Judge Alvin Hellerstein’s ruling that the government must turn over more Abu Ghraib photos to America’s enemies (via the ACLU) is based on an attempt to distinguish “secrets” from “embarrassment”:
If the documents are more of an embarrassment than a secret, the public should know of our government's treatment of individuals captured and held abroad," he noted, criticizing the "glacial pace" with which the George W. Bush administration had responded to the groups' requests. [Jim Lobe reporting.]
Our war against Islamic terrorism is in large part a PR war. Not only is Hellerstein’s attempt to distinguish PR from war oblivious to reality, it is not his call to make. It is the President’s.

The current ruling is the sequel to Hellerstein’s February ruling in the same case where he ordered the Dept. of Defense to fulfill ACLU Freedom of Information Act requests for details of detainee treatment. Mark Hamblett reported the heart of the February ruling as follows:
The CIA, making its request for a stay in American Civil Liberties Union v. Department of Defense, 04 Civ. 4151, invoked what the judge called a "seldom construed" statute — the CIA Information Act, which empowers the agency's director to exempt certain "operational files" from publication or disclosure under the Freedom of Information Act.

Judge Hellerstein said the act also contains an "exception to that exemption" in 50 U.S.C. §431(c)(3), where an " 'impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity' is being investigated by the congressional intelligence committees, various agencies of government, or the 'Office of Inspector General of the Central Intelligence Agency.' "

The CIA's Office of the Inspector General began a criminal investigation of allegations of improper treatment of prisoners in Iraq in May.
The only powers Hellerstein is recognizing here are the powers of Congress, manifest in the FOIA statute. He is completely ignoring the separate powers of the executive, in particular, the president's war powers. Hellerstein repeats this crazy claim in the present case when he asserts that “no one is above the law… merely raising national security concerns cannot justify unlimited delays.”

"The law" that he is referring to here is not the Constitution. It is Congress' FOIA (see the openning paragraph of Hellerstein's Opinion and Order). Hellerstein is asserting a principle of pure congressional supremacy.

The executive has no powers independent of Congress? Bullshit it doesn’t. No matter what the FOIA says, there is plenty of information that Congress cannot compel the executive branch to make public, especially in the areas of diplomacy and war-fighting. In time of war, it is the executive that determines what is and is not a matter of military necessity, not the Congress, and not some idiot judge who thinks he can distinguish the battle for hearts and minds from the battle of bullets and brawn.

As I said in my last post, I think SOME court oversight IS necessary here. Detailed balancing of national security and other constitutional interests is the job of the executive in time of war, but the courts should still be able to reject executive actions that clearly violate any reasonable balancing. This is not what Hellerstein is doing. He is simply refusing to recognize any executive war powers AT ALL.

The closest Hellerstein comes to addressing the war powers issue is on Page 6 of his Opinion and Order where he cites the Court’s assertion in United States v. Robel (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. Eeeehaw! How's that for a deduction? Sorry Hellerstein. What is and is not a matter of national security is not for you to say. That is what we elect the president for.

When I say that this is "the closest Hellerstein comes to addressing war powers," I don't mean to say he comes close. His activist dismissal of "national defense" concerns comes not by way of addressing the president's war powers, but by way of addressing provisions of the FOIA that set out CONGRESS' attempts to accommodate and define presidential war powers. In other words, he remains throughout in the position of an absolute congressional supremacist, acknowledging no independent executive powers.

Hellerstein is the nutcase who let 9/11 families sue the airlines for the terrorist attack on 9/11 (hat tip Basil's Blog). He also refused to accept a guilty plea on the grounds that “fraud” does not necessarily imply “deception.” It doesn’t? About what we should expect from a Clinton appointee.

UPDATE: In googling this case, I did not keep proper track of the dates of what I was looking at and conflated Hellerstein's ruling this week with some of his earlier rulings in the same case. My analysis stands, but be apprised that the linked Opinion and Order is not from Hellerstein's latest ruling, as I stated, but is from a ruling that PRECEEDED the February 12th ruling. (It is from last September.)

February 12th Opinion and Order here. This and the September ruling are both based entirely on the FOIA, with no consideration given to presidential war powers except as provided for by the FOIA. The September ruling LOOKS at first like it is recognizing "national defense" as an independent executive concern, before regulating it strictly in terms of FOIA guidelines. The February ruling is explicitly based entirely on FOIA, holding that, since the DOD is investigating wrongdoing at Guantanamo, the "operational files" exception to FOIA does not apply and the information must be turned over.

I haven't been able to find the Order and Opinion for the May 26th ruling online yet, but the previous two rulings make it pretty clear what the basis must be. The previous two rulings were demanding that the Department of Defense submit to the FOIA process for determining whether the requested information had to be released. The latest ruling ordered the release of the photos. Hellerstein's fundamental position was laid out at the start of the September ruling, where he asserted that the DOD must without exception submit to FOIA. There is no reason to expect him to start attending to independent executive branch war powers now, and the order to release the photos suggest that he has not.

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