Constitution 7, Limitless Executive Power 0

Every time — every single time — that President Bush asserted some unlimited executive power in the name of “national security” or “terrorism,” a federal court has shot him down. Let’s take a walk down memory lane.

2004 marked the first big loss for the Bush administration in the judiciary branch. Hamdi v. Rumsfeld was the first major challenge to President Bush’s self-asserted national security powers. In that case, the Bush administration asserted that Hamdi, an alleged terrorist captured in Afghanistan, had no right to contest his detention. The U.S. Supreme Court disagreed and said that Hamdi, an “enemy combatant,” did have the right to contest his detention before a neutral decisionmaker. In Boumediene v. Bush (2008), the U.S. Supreme Court ruled that prisoners held in Guantanamo Bay did have the right to habeas petitions, and the Military Commissions Act’s hearings were unconstitutional. In Rasul v. Bush (2004), the Court struck down legislation that ostensibly prevented the federal courts from ruling on whether or not Guantanamo detainees were wrongfully imprisoned. Judge Anna Diggs Taylor,of the U.S. District Court for the Eastern District of Michigan, ruled in 2006 that the Bush administration could not use the state secrets privilege to dismiss evidence in a case involving warrantless wiretapping and surveillance of U.S. citizens. In 2006, the Supreme Court ruled, in Hamdan v. Rumsfeld, that Congress did not intend to use the Detainee Treatment Act to strip the Supreme Court of its authority to hear pending habeas petitions from prisoners in Guantanamo Bay. Also in 2006, Judge Vaughn Walker of the U.S. District Court for the Northern District of California, refused to dismiss a civil suit against AT&T for warrantless wiretapping. The Bush administration had again asserted the state secrets privilege.

And now we come back to present day. President Obama’s Justice Department has, much to my chagrin, continued — and in some cases, exceeded — the use of the state secrets privilege. It even wanted to have an entire case dismissed on the grounds that the evidence to be used was classified under the state secrets privilege. The Ninth Circuit Court of Appeals down on Hyde Street in San Francisco — right across the street from the public library — ruled today that Obama could not have the case dismissed due to “state secrets.”

Judge Michael Daly Hawkins, writing the unanimous opinion of the three-judge panel, didn’t buy the Justice Department’s argument that “the very subject matter” of the case was so confidential, and could be so potentially damaging to national security, that it couldn’t even be discussed in court. The “subject matter” was Jeppesen Dataplan’s involvement in the “extraordinary rendition” of terrorism suspects in U.S. custody to CIA “black sites” around the world, where they would be presumably tortured. (Jeppesen Dataplan is an oddly-named subsidiary of Boeing, whose airplanes were used to transport suspects to other countries for torture.)

The Ninth Circuit was quite strong in its affirmation that the Obama administration was making things up (the judges rejected the “very subject matter” argument because “it is unsupported in the case law”; i.e., Justice Department lawyers made it up). It was also strong in its affirmation of the separation of powers principle. The job of the courts is to interpret the law. The job of the executive is to enforce the law. For Obama to assert that there exists a scenario in which the court cannot be allowed to interpret the law is a gross overreach of presidential power that violates the separation of powers principle.

Oh, and they took time out of their busy schedule to say that “arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’” (Bonus points: that was part of Justice Scalia’s dissent in Hamdi v. Rumsfeld).

What’s interesting about Obama’s argument here is that he wants to use the state secrets doctrine to prevent even the confirmation or denial of the fact that people were extraordinarily rendered. We’re not even talking secret evidence here; Obama says that it is detrimental to national security to say merely that something happened or not. Judge Hawkins will have none of this: “The state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret,” he writes. Sure, the state secrets privilege can be used to suppress evidence, but not to suppress the fact that something happened. To go into the nitty-gritty of how extraordinary rendition works (which would be evidence) might be damaging to national security, but merely stating that it happens is not damaging to national security. (What it is damaging to is the country’s public image, and it opens up the government to litigation. Let’s be clear, here: this has nothing to do with actual national security and everything to do with damage control, something the Ninth Circuit hints at in the opinion.)

Finally, the Ninth Circuit addresses the fine distinction between “classified” and “secret.” Classified information is ipso facto subject to a whole host of laws, many of which give the executive branch the authority to decide what to classify and declassify. The distinction becomes important to this case because the government argues that courts should defer to the executive, per the Freedom of Information Act, regarding what should or should not be “secret,” since all secret things are also necessarily classified. The government cannot seriously argue, says the court, that information that has been made public (as this was; The New York Times reported years ago on the existence of this rendition program) is still “secret,” and by way of “secret,” therefore “confidential.” It does not follow that, because the executive says something is confidential, the courts must necessarily accede and declare that confidential thing to be secret within the scope of a judicial proceeding.

The court emphasized that its ruling was limited only to the issue of whether or not the state secrets privilege could be used to dismiss the case wholesale. The case will be remanded back to the district court from whence it came, with the understanding that Obama may use the state secrets privilege to have certain evidence excluded, but he may not have the whole case dismissed. Even then, it will be up to the court to decide whether to actually exclude the evidence or not.

Given that seven cases over five years have all declared absolute executive power to be unconstitutional, you’d think that the executive branch would take the hint. And I’m especially disappointed by Obama, who wrote in a January memorandum to all executive agencies:

The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.

Are they just empty words? We’ll see.