Judge Bucking Obama DOJ on State Secrets Privilege

Judge Bucking Obama DOJ on State Secrets Privilege April 25, 2013

A federal judge appointed by Bill Clinton is not letting the Obama administration get away with its usual invocations of the State Secrets Privilege and demand that the courts just accept their judgment on what information can and can’t be introduced in a court case. The case involves a lawsuit filed over the placement of a Malaysian student on the no-fly list and her subsequent detention.

The Obama Administration and a federal judge in San Francisco appear to be headed for a showdown over the controversial state secrets privilege in a case about the U.S. government’s ‘no-fly’ list for air travel.

U.S. District Judge William Alsup is also bucking the federal government’s longstanding assertion that only the executive branch can authorize access to classified information…

In an order issued earlier this month and made public Friday, Alsup instructed lawyers for the government to “show cause” why at least nine documents it labeled as classified should not be turned over to Ibrahim’s lawyers. Alsup said he’d examined the documents and concluded that portions of some of them and the entirety of others could be shown to Ibrahim’s attorneys without implicating national security.

“After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced with little or no modifications to them,” Alsup wrote in an April 2 order (posted here). “This order independently determines that in addition to correspondence between the parties, the two internal training documents are eligible for production to plaintiff’s counsel without implicating national security.”

Like Bush, Obama has continually argued in court that if the executive branch says that turning over a certain document would endanger national security, the courts just have to accept that judgment. But in cases that involve a challenge to actions taken by the executive branch, that gives them the ability to prevent any suit from going forward without any safeguards to prevent them from violating the Constitution.

In a separate order Friday (posted here), Alsup ordered the disclosure of about 60 other unclassified documents to Ibrahim’s lawyers, largely rejecting the government’s arguments that the records were protected from disclosure by a statute or covered by legal privileges that apply to government decisionmaking and to information about sensitive law-enforcement techniques.

“There is some risk that disclosure of these documents would hinder frank and ongoing discussion regarding contemplated visa decisions. Nevertheless, these documents are highly relevant to plaintiff’s claims and are not available from any other source,” Alsup wrote. “The other factors that outweigh the government’s assertion of the [deliberative process privilege] likewise play a substantial role here. Plaintiff has properly pled constitutional claims challenging alleged government misconduct. This creates a strong interest in accurate fact-finding for plaintiff and for society, and a strong interest in the enforcement of the constitutional protections asserted in plaintiff’s complaint.”

The use of such privileges to prevent plaintiffs from getting their day in court and preventing courts from examining behavior by the executive branch that violates the constitution is a serious problem. Without such scrutiny, there are essentially no limits on what the executive branch can do.

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