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.”Dorsey did, however, point out an option that didn't include the judicial system. (Well, at least not immediately…)
“That is our position,” Dorsey agreed.
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.
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Filed Under: classification, classified, first amendment, judicial system, olc, separation of powers
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Police State says nothing to see here, move along.
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The Constitution is silent on the whole issue.
Of course, Congress and the Supreme Court routinely choose to restrict ("Classify") all sorts of information, hiding it from the other government branches and the public. They don't use the formal Exec Branch terminology/process, but the effect is the same.
The three government Branches have different powers to pry secrets form each other, if they choose to employ them. But Politics rules the behavior of all three Branches.
If the Federal Judiciary really wants these Gitmo videotapes released-- they should enforce their previous order to do so (Duh!)... by promptly prosecuting and imprisoning the specific persons in the Executive Branch who control the tapes and are defying court orders. Likewise any DOJ persons refusing to cooperate with court orders should be individually prosecuted.
The whole power structure and legitimacy of the Executive Branch ultimately rests on the courts and the justice system -- it cannot openly defy the courts, unless the courts choose to tolerate it.
The Federal Judiciary has plenty of power, but they are basically politicians and will not rock-the-boat. Gitmo and its victims are distant trivia to them.
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Sad truth and a fact it seems in a disturbingly large amount of Governments.
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And who exactly would prosecute? That's the key problem, the prosecution is with the DOJ and the Executive Branch. The judiciary is precisely that, the Judges. They do not have the power to initiate an investigation or a prosecution.
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The sad part about the judges playing politics is that they dont have to, they are appointed for life, they dont have to worry about re-election or anything like that...
I hope that the courts will reject this bullshit ploy by the DoJ and order those tapes released, but i doubt it...
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Bush versus Obama
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Re: Bush versus Obama
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Re: Bush versus Obama
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Thankfully we won't have this problem with the next president.
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Contempt charges, ruling against the DoJ whether or not they have a legit case...
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I blame the courts
This is just a logical consequence.
If they had thrown a few AG's in jail for contempt, we wouldn't have this problem.
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Hilarious indeed.
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FOIA
I'd love to see the judge in this case personally issue such a request.
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Er, perhaps because, as some AC (probably you) said, it "would almost certainly be used as anti-US propoganda".
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So? If it can be used for anti-US "propoganda", it's considered bad by a number of people. If it's considered bad by a number of people, they need to be able to tell their representatives they want to see it stopped and, if they don't see their representatives representing them properly, be able to vote them out.
That's what a democratically elected government of a republic is about.
If the relation between policies and votes is broken because policies no longer are public, you no longer have elections but lotteries.
Which is worse than "anti-US propoganda": it is anti-US. It abolishes the principles that the republic has been funded on, thus fast-forwarding to the ultimate goals of the terrorists.
If you are against "terrorist wannabes", don't do their job for them.
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You are missing the forest for the trees. The problem is not that this particular information should or shouldn't be classified, the problem is that the executive branch is claiming that nobody has the authority to override their decisions about classifying information.
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That's the point; if it's capable of being used that way we need to know about it to be able to do something about it because we shouldn't be doing it in the first place.
Buddha on a stick, what is wrong with this place?
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The track record that we know about so far makes me think that.
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I'm also not sure why you keep bringing up "accepted medical protocols". There are plenty of accepted medical protocols that can be performed in circumstances where they amount to nothing but torture.
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What's that saying they like to use. "If you have done nothing wrong, you have nothing to fear". Something like that
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If what they had done was performed for legitimate medical reasons, they would have no reason to refuse to provide evidence of it. That they are fighting against being forced to do so tells me all I need to know.
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Either the Justice Department has some big balls or they are grossly misinformed about their roll in our country. They are nothing more than the figurehead for law enforcement and justice in this country. The Justice Department does not get the right to tell the courts what they can and cannot do.
The courts are the only entity in this country that can issue legal injunctions, order and decrees by which every person, every business, every entity in what they can or cannot do.
Last I checked, the Justice Department has no authority over our courts and the Justice Department cannot tell the courts what to do. You got to hand it to Loretta Lynch that she has the gall to issue such a directive to the courts. That really takes a big set of balls to have.
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Or they understand that nobody can really make them do anything. The executive branch is the only one with the power to arrest people and put them in jail, so members of that branch have no fear of that happening to them. The worst that could happen is something written on a piece of paper that goes against what they want, which they can then appeal.
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Powers of Arrest
The problem is that checks and balances have given way to the power of the checkbooks, which is leading rapidly to an us vs them showdown, where "them" is likely to be anyone with a government-issued paycheck.
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Judges have Power
Judges can also simply rule against the DOJ on failure to produce discovery, resulting in cases being thrown out or rulings against the DOJ as failure to produce means that the evidence must be taken in the worst possible light for the DOJ.
All of this weakens the power of the DOJ.
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Simple solution
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Revealing Sentence
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"the government. claims to be the sole arbiter of any information it deems classified" [emphasis added]
This sentence is very revealing and I think explains, in part, executive overreach. The government does is in fact the sole arbiter. It's just that the government includes the judicial and legislative branches. Choosing to use the word government to refer to the executive branch exclusively is very revealing about the mindset of the populace and I think explains, in part, executive overreach. If people, including the writer of this article, believe the executive branch is the government and the other branches, by extension, are not then it may well explain why the executive branch itself thinks that it is the sole arbiter.
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Hold The Torturing Sadists Accountable
This is what has been done in our names!
These depraved US government sadists weren't keeping us safe, they weren't defending our liberties they were getting their depraved sadist rocks off while torturing human beings for their personal pleasure not the claimed "actionable intelligence".
The torturing sadists need to be held to account and in order for that to happen US citizens need to see the senseless acts of depravity carried out in their names.
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Any basement in a building with plumbing can become leaky if necessary.
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Nah, I'm betting they'll have been destroyed and/or overwritten during a 'routine deletion of old materials'. I mean come on, it's just video evidence of the torture of prisoners, how could that ever be relevant, and therefor need to be kept? /s
how many leaky basements does the executive branch have?
Exactly as many as they need at any given time.
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Since when does our government have more power than the people? This has been heating up for a long time, ever since The Patriot Act was first passed and Americans are no longer standing up for it.
If anyone thinks that this so-called Arab Spring and these civilian protests and riots in other countries was bad, just wait until it erupts in the United States.
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You're hoping for a violent revolution in the next year and a half?
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Same shit different day
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