DOJ Redefines Separation Of Powers, Tells Court It Has No Power To Order Government To Hand Over Documents

from the stand-by-for-OLC-memo-justifying-destruction-of-First-Amendment... dept

The US government is comprised of three branches: legislative, judicial and executive. The branches are supposed to work to balance the government, with each one acting as a check against excesses by the others. As a theory, it's impeccable. In practice, it's a mess.

At a hearing today on a lawsuit seeking to make videotapes of force-feedings at Guantánamo public, Justice Department attorneys argued that the courts cannot order evidence used in trial to be unsealed if it has been classified by the government. “We don’t think there is a First Amendment right to classified documents,” stated Justice Department lawyer Catherine Dorsey.
The judges, of course, reserve the right to tell the DOJ it's full of crap. It hasn't yet, but that may be coming. It did, however, get off a shot of its own in response.
“Your position is that the court has absolutely no authority (to order disclosure), even if the government is irrational?” [Judge Merrick] Garland asked, pointedly raising a scenario in which the government classifies a copy of the Gettysburg Address.
The information being argued over is recordings of Guantanamo Bay detainees being force-fed. These were ordered to be released last October by District Judge Gladys Kessler, who granted a stay while it was appealed.

In the arguments presented here, the government claims to be the sole arbiter of any information it deems classified -- something that's only going to lead to more classification and more secrecy. Judge Garland pressed the US attorney on this disturbing claim and found the government was saying exactly what he thought it was saying.
Chief Judge Merrick Garland characterized the government’s position as tantamount to claiming the court “has absolutely no authority” to unseal evidence even if it’s clear the government’s bid to keep it secret is based on “irrationality” or that it’s “hiding something.”

“That is our position,” Dorsey agreed.
Dorsey did, however, point out an option that didn't include the judicial system. (Well, at least not immediately…)
She added that a more appropriate tool to compel the release of the videos was through a Freedom of Information Act request.
Hilarious.

The government is trying to prevent these videos from being released, citing national security concerns. Does anyone actually feel a FOIA request will result in anything more than a rejection on the same grounds? And when it happens, the FOIA request refusal will eventually end up in court… where the government's "right" to declare information too secret to be released will still keep these recordings out of the public's hands.

The executive branch's position is clear: it feels it should have sole control over the release of classified documents. The courts are welcome to ensure its assertions remain unchallenged, but in no way is it invited to second guess its secrecy efforts, or the motivations behind them.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. identicon
    Anonymous Coward, 18 May 2015 @ 7:49am

    Well if the executive branch gets its way, then someone is going to have to update the "schoolhouse rock three ring government" video.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Copying Is Not Theft
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.