Judge Royce Lamberth is one of those federal judges, like Richard Posner and Alex Kozinski, whose status in the legal profession exceeds their position, rivaling Supreme Court justices. And for good reason, too. He’s finally saying what few other jurists will say, that the judiciary is far too deferential to the executive branch on national security issues:
Speaking at a conference for federal employees who process Freedom of Information Act requests, U.S. District Court Judge Royce Lamberth said his fellow jurists usually rubber-stamp agency claims that disclosing information would jeopardize national security.
“It bothers me that judges, in general, are far too deferential to Exemption 1 claims,” Lamberth said, referring the language in FOIA that allows for withholding of information classified pursuant to an executive order. “Most judges give almost blind deference on Exemption 1 claims.”
According to the text, judges are supposed to make a “de novo” determination whether information is “in fact properly classified.” However, most have taken that to mean primarily considering whether the mechanics of the classification process were followed. By an large, judges do not delved into whether the reasons for classifying the information were legitimate or they accept any plausible reason. Some appeals courts have endorsed such a hands-off approach to that issue, though some judges have occasionally ruled classification decisions to be improper (see here and here)…
The judge noted that FOIA was created in part because of concerns about surveillance operations like the FBI’s COINTELPRO, which gathered intelligence on civil rights movement leaders like Martin Luther King Jr.
“The next COINTELPRO may not be that far away. The next intelligence scandal may just not be that far away,” Lamberth warned.
I’m certain that it would already be here if the federal courts did not allow the executive branch to hide their constitutional abuses behind the artificial standing doctrine, the State Secrets Privilege and others legal maneuvers that make their power all but limitless. Sadly, there is no Frank Church in the Senate anymore to bring these abuses to light and demand more oversight.