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

Mon, May 18th 2015 3:45am — Tim Cushing

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: classification, classified, first amendment, judicial system, olc, separation of powers

62 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 18 May 2015 @ 4:12am

The separation of powers has been an illusion since FDR.
[ link to this | view in thread ]
Ninja (profile), 18 May 2015 @ 5:02am

The executive branch's position is clear: it feels it should have sole control over the release of classified documents.

Police State says nothing to see here, move along.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 5:20am

Re:
Hate to break it to you but we've been dealing with crises of executive overreach from the founding of the republic.
[ link to this | view in thread ]
Chris in Utah (profile), 18 May 2015 @ 6:11am

Nothing like old news
[ link to this | view in thread ]
Ed (profile), 18 May 2015 @ 6:16am

To me, this has been the worst travesty of the Obama administration. We expected this type of crap from Bush. But Obama promised transparency but has been anything but so. If anything, his administration has doubled-down on secrecy and added draconian punishment of anyone daring to blow the whistle on the blatantly illegal activities of the government. All of Obama's positive accomplishments will be overshadowed by his legacy of tyrant-like actions in this regard.
[ link to this | view in thread ]
avideogameplayer, 18 May 2015 @ 6:21am

This might be a case where judicial activism might come in handy...

Contempt charges, ruling against the DoJ whether or not they have a legit case...
[ link to this | view in thread ]
JustShutUpAndObey, 18 May 2015 @ 6:36am

I blame the courts
The courts have encouraged and promoted this attitude by their total failure to discipline government agencies and officials who have flaunted the law and the courts in the past.
This is just a logical consequence.
If they had thrown a few AG's in jail for contempt, we wouldn't have this problem.
[ link to this | view in thread ]
Teamchaos (profile), 18 May 2015 @ 6:50am

“This is the most transparent administration in history"

Hilarious indeed.
[ link to this | view in thread ]
mcinsand, 18 May 2015 @ 6:59am

Bush versus Obama
The only significant difference between Bush and Obama has been that one has the ability to pronounce the word 'nuclear.'
[ link to this | view in thread ]
Joel Coehoorn, 18 May 2015 @ 7:06am

FOIA
> "She added that a more appropriate tool to compel the release of the videos was through a Freedom of Information Act request."

I'd love to see the judge in this case personally issue such a request.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 7:08am

Let's be accurate. What is being pressed forward here by the plaintiffs is the unconditional public release of what is ostensibly classified information involving subject matter that would almost certainly be used as anti-US propoganda by groups reaching out for the hearts and minds of terrorist wannabes. Transparency is a good principle, but so too is perspective about what is actually involved in any disputed matter.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 7:14am

Re:
He is actually right... the only court with the power to counter is the Supreme Court. It will have to make it all the way up there.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 7:18am

Re:
thats some f'd up logic.
[ link to this | view in thread ]
Erwin, 18 May 2015 @ 7:20am

Re:
"Classified" government information (e.g., Top Secret, Secret, Confidential, etc) is an arbitrary legal concept. Under current US statutory law, only the President has formal 'authority' to classify anything (though he may partially delegate that authority within the Executive Branch").

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.
[ link to this | view in thread ]
Daniel (profile), 18 May 2015 @ 7:22am

Re:
Seems right that a comment like this would come from an AC. Don't be a sympathizing dimwit. If the US military bothered to care and consider the consequences of their actions when(not if) news of them became public, then we likely wouldn't be here. The military failed to keep itself in check and now it's got some dirty laundry that's about to be aired, boo hoo. The People aren't here to help cover up the crimes of the ones who act in our name.
[ link to this | view in thread ]
kenichi tanaka (profile), 18 May 2015 @ 7:22am

Did I read that right?

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.
[ link to this | view in thread ]
Ninja (profile), 18 May 2015 @ 7:26am

Re: Re:
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.

Sad truth and a fact it seems in a disturbingly large amount of Governments.
[ link to this | view in thread ]
James Burkhardt (profile), 18 May 2015 @ 7:47am

Re: Re:
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.

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.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
VonFluffington (profile), 18 May 2015 @ 7:51am

Re: Bush versus Obama
Hey now, don't forget Obama is more of a fan of drone strikes to kill the people he doesn't like while Bush preferred the more human touch of deployed troops. Obama truly brought us into the 21st century of assassinations and conflict!
[ link to this | view in thread ]
J., 18 May 2015 @ 7:59am

Re: Re: Re:
Well the courts can order the government to turn over the documents. The government can appeal that decision to a higher court, until they get what they want, or the supreme court decides to take the case. If at this point they still refuse the court order, and law enforcement chooses to ignore an arrest warrant issued by the courts in order to protect the executive branch, then that's a coup.
[ link to this | view in thread ]
David, 18 May 2015 @ 8:00am

Re:
What is being pressed forward here by the plaintiffs is the unconditional public release of what is ostensibly classified information involving subject matter that would almost certainly be used as anti-US propoganda by groups reaching out for the hearts and minds of terrorist wannabes.

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.
[ link to this | view in thread ]
nasch (profile), 18 May 2015 @ 8:06am

Re:
What is being pressed forward here by the plaintiffs is the unconditional public release of what is ostensibly classified information involving subject matter that would almost certainly be used as anti-US propoganda by groups reaching out for the hearts and minds of terrorist wannabes.

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.
[ link to this | view in thread ]
nasch (profile), 18 May 2015 @ 8:09am

Re:
Either the Justice Department has some big balls or they are grossly misinformed about their roll in our country.

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.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 8:19am

Re: Bush versus Obama
Bush also had some plausible deniability about all the domestic spying as well. He was so stupid and no one rubbed his nose in what was going on, so Bush is somewhat believable if he claims he didn't know what was going on.
[ link to this | view in thread ]
Pyros, 18 May 2015 @ 8:36am

Judges have Power
Judges have Contempt power, So in theory the court could hold the DOJ's rep in contempt and place him in jail till the material is produced. The next rep could get the same response and the DOJ would have a fairly bad crisis on there hands if everyone was sitting in contempt.

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.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 8:45am

Someone needs to jail the entire DOJ for contempt of court until they cough up those fucking documents.
[ link to this | view in thread ]
IANAL, 18 May 2015 @ 8:47am

Powers of Arrest
Actually, both Congress and the Courts have the power to arrest those who are found in contempt. Congress can use the Sergeant at Arms, and the Courts can use ... ummm... I don't know, and my google-fu is weak today.

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.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 8:51am

Re: Re:
Apparently you are not one inclined to form opinions in the absence of facts. What makes you draw the conclusion that the military has done something demonstrably wrong? Or is it you are one of far too many who jump the gun and assume the worst whenever an action by persons in the employ of the USG is concerned?
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 9:07am

Simple solution
either everything, and anything that could have been discovered from that act is out in a court of law, or you reveal it in public court.
[ link to this | view in thread ]
PRMan, 18 May 2015 @ 9:10am

Re:
That would be an awesome parody. Too bad it would get taken down in 100 ms.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 9:28am

Re:
"subject matter that would almost certainly be used as anti-US propaganda by groups reaching out for the hearts and minds of terrorist wannabes."

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?
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 9:30am

Re:
cue John Oliver...
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 9:56am

Re: Re:
and by this place I mean 'Murica.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 10:04am

Re: Re:
What makes you think something wrong was being done? It is equally plausible the feeding was being done in accordance with accepted medical procedures.
[ link to this | view in thread ]
John Fenderson (profile), 18 May 2015 @ 10:26am

Re: Re: Re:
"What makes you think something wrong was being done?"

The track record that we know about so far makes me think that.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 11:11am

Re: Re: Re: Re:
You mean to say you have personal knowledge of specific instances where such feeding was done in violation of accepted medical protocols? That might make some sense, but anything broader than that is just blatant speculation devoid of factual support.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 11:20am

with fire and sword we say nay to this government of lies and demand fairness or put all to the flame perhaps.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 11:22am

Re: Re: Re:
the fact the government is trying so hard to hide it?

What's that saying they like to use. "If you have done nothing wrong, you have nothing to fear". Something like that
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 11:25am

Re:
I think we all agree its is the most transparently corrupt, criminal and evil
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 12:09pm

Revealing Sentence
"the governmentgovernment 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.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 12:11pm

Re: Revealing Sentence
Forgot to close my bold tag. Here is the actual text:

"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.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 12:12pm

Re:
Let's be more accurate. It's the public release of information regarding a subject matter that shouldn't even be a subject. That America has lost the moral high ground it once had is unquestioned but without releasing this type of information the American people have no way of trying to regain what we have lost.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 12:19pm

and this is what the USA government and security forces are doing their best to achieve! a nation where the only laws are the ones those forces say are in force at the time they state, whether at an incident or in the court house! and who is to blame for this situation? those in government, the very ones who are elected to ensure the safety of the people, not a government elected to be able to screw as many people as possible because they read and interpret laws to suit them! that is a very good reason to do away completely with the Patriot act and the FISA courts! make everything as it should be, out in the open for people to have their say and pass judgement!!
[ link to this | view in thread ]
Hans, 18 May 2015 @ 1:06pm

Re:
"To me, this has been the worst travesty of the Obama administration."

Thankfully we won't have this problem with the next president.
[ link to this | view in thread ]
Hans, 18 May 2015 @ 1:10pm

Re: Re: Re:
"What makes you draw the conclusion that the military has done something demonstrably wrong?"

Er, perhaps because, as some AC (probably you) said, it "would almost certainly be used as anti-US propoganda".
[ link to this | view in thread ]
wallyb132 (profile), 18 May 2015 @ 1:14pm

Re: Re:
The judicial branch lacks the power to prosecute, but they do have the power to imprison, its called contempt of court.

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...
[ link to this | view in thread ]
John Fenderson (profile), 18 May 2015 @ 1:54pm

Re: Re:
While it is transparently corrupt, it's far from the most transparently corrupt in US history. It's not even the most corrupt in the 20th or 21st centuries.
[ link to this | view in thread ]
John Fenderson (profile), 18 May 2015 @ 1:58pm

Re: Re: Re: Re: Re:
No, I mean that so many officially acknowledged actions have been abhorrent that a reasonably person can assume that anything done that looks like it's terrible probably is terrible.

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.
[ link to this | view in thread ]
Personanongrata, 18 May 2015 @ 2:33pm

Hold The Torturing Sadists Accountable
US citizens need to see the torture that has been documented in these video tapes that were recorded at GTMO.

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.
[ link to this | view in thread ]
That One Guy (profile), 18 May 2015 @ 2:55pm

Re: Re: Re:
How about the fact that the government is trying desperately to keep the videos secret? If the force feeding really was done 'in accordance with accepted medical procedures', then they'd have no problem handing the evidence of such over(unless perhaps they've come up with a few classified interpretations of those medical procedures).

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.
[ link to this | view in thread ]
Anonymous Coward, 18 May 2015 @ 4:14pm

Re: Re:
Feeding a person trying to starve himself, and in the presence of medical personnel using medically-approved protocols, is hardly a problem. Perhaps you would rather they sit idly by and let him die of starvation.
[ link to this | view in thread ]
beltorak (profile), 18 May 2015 @ 6:38pm

how much does anyone want to bet that the moment the DOJ has no choice but to hand over the tapes, it will have been discovered that they were "stored improperly" and "damaged beyond usefulness"? how many leaky basements does the executive branch have?
[ link to this | view in thread ]
nasch (profile), 18 May 2015 @ 7:35pm

Re:
how many leaky basements does the executive branch have?

Any basement in a building with plumbing can become leaky if necessary.
[ link to this | view in thread ]
That One Guy (profile), 18 May 2015 @ 8:52pm

Re:
how much does anyone want to bet that the moment the DOJ has no choice but to hand over the tapes, it will have been discovered that they were "stored improperly" and "damaged beyond usefulness"?

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.
[ link to this | view in thread ]
beltorak (profile), 18 May 2015 @ 9:52pm

Re: Re:
Don't worry sir. Whether or not the building has plumbing, we'll find the leaky pipe that destroyed the tapes.
[ link to this | view in thread ]
MrTroy (profile), 18 May 2015 @ 10:46pm

Re: Re: Re:
It's probably the most corrupt in the 21st century (so far), though...
[ link to this | view in thread ]
MrTroy (profile), 18 May 2015 @ 11:07pm

Re: Re: Re:
If it's not a problem, then why is it classified? If it's an identity thing, then blur everyone's face in the footage - preferably without rendering the video useless for commenting on the "medical feeding".
[ link to this | view in thread ]
Anonymous Coward, 19 May 2015 @ 12:50am

Re: FOIA
And I'd love to find out if the DoJ will be able to justify delivering a live leopard as a valid response.
[ link to this | view in thread ]
kenichi tanaka (profile), 19 May 2015 @ 12:14pm

I seriously hope that the Obama Administration keeps tightening its grip around the necks of the American People because we're heading close to a revolution in this country where the people are starting to get fed up with the perverted sense of entitlement that our government thinks it's entitled to.

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.
[ link to this | view in thread ]
nasch (profile), 19 May 2015 @ 12:27pm

Re:
I seriously hope that the Obama Administration keeps tightening its grip around the necks of the American People because we're heading close to a revolution in this country where the people are starting to get fed up with the perverted sense of entitlement that our government thinks it's entitled to.

You're hoping for a violent revolution in the next year and a half?
[ link to this | view in thread ]
Just another stupid American, 19 May 2015 @ 4:53pm

Same shit different day
This sounds familiar. How many Americans are going to be completely disgusted with the government today. Same old shit different day.
[ link to this | view in thread ]