Executive branch decisions to classify national security information are
subject to judicial review in Freedom of Information Act cases, government
attorneys acknowledged in a brief filed yesterday.
That potentially explosive question arose following an extraordinary
ruling by a federal judge ordering the U.S. Trade Representative to release
a one-page classified document that had been requested under the FOIA by
the Center for International Environmental Law. The document's
classification was not "logical," said DC District Judge Richard W. Roberts
last March, and therefore it was not exempt from public disclosure.
http://www.fas.org/blog/secrecy/2012/03/not_logical.html
The government appealed that ruling in September, but stopped short of
asserting that the court had no authority to order release of the
classified document.
Yesterday, in response to arguments presented in an amicus brief from
media organizations, government attorneys made their acceptance of judicial
review explicit in a final reply brief.
"We agree that district courts (and courts of appeals) play an important
role in evaluating the government's compliance with its obligations under
FOIA, in Exemption 1 cases [involving national security classification] as
well as others...."
"We have not sought to diminish the role of courts in FOIA Exemption 1
cases, nor have we suggested that the Executive's determination that a
document is classified should be conclusive or unreviewable," attorneys
wrote in the November 27 brief (at p. 8).
http://www.fas.org/sgp/jud/ciel/112712-ustr-reply.pdf
In other words, the government did not assert that the executive has some
kind of transcendent Article II classification power, nor did government
attorneys contend (a la Egyptian President Morsy) that the judicial review
provisions of FOIA are an unconstitutional infringement on executive
authority.
This was the crucial information policy question that was raised by the
move to appeal Judge Roberts' highly unusual disclosure order, and the
government has more or less resolved it by submitting to the discipline of
judicial review.
What remains is a bona fide dispute: Was the decision to classify the
USTR document well-founded and plausible, as the government insists, and
therefore entitled to judicial deference? Or was it illogical, as the
lower court ruled, nullifying the document's exemption from FOIA?
Oral arguments in the case are scheduled for February of next year.
DOES FOREIGN AID WORK?, AND MORE FROM CRS
New and newly updated reports from the Congressional Research Service
obtained by Secrecy News that have not been made publicly available include
the following.
Does Foreign Aid Work? Efforts to Evaluate U.S. Foreign Assistance,
November 19, 2012:
http://www.fas.org/sgp/crs/row/R42827.pdf
Congressional Redistricting: An Overview, November 21, 2012:
http://www.fas.org/sgp/crs/misc/R42831.pdf
Update on Controlling Greenhouse Gases from International Aviation,
November 19, 2012:
http://www.fas.org/sgp/crs/misc/R42828.pdf
The Federal Acquisition Regulation (FAR): Answers to Frequently Asked
Questions, November 16, 2012:
http://www.fas.org/sgp/crs/misc/R42826.pdf
Gangs in Central America, November 26, 2012:
http://www.fas.org/sgp/crs/row/RL34112.pdf
The Federal Food Safety System: A Primer, November 26, 2012:
http://www.fas.org/sgp/crs/misc/RS22600.pdf
The President's Office of Science and Technology Policy: Issues for
Congress, November 26, 2012:
http://www.fas.org/sgp/crs/misc/RL34736.pdf
_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web: www.fas.org/sgp/index.html
email: saftergood@fas.org
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twitter: @saftergood
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