The struggle to restrain the excesses of the executive branch of government -- and to maintain the separation of powers envisioned by this country’s founders -- continues.
The latest effort came from a panel of federal appellate judges who, on Monday, after taking a look at the government’s evidence, ruled there was no basis to have labeled former fruit peddler Huzaifa Parhat an enemy combatant or to have detained him at Guantanamo Bay for the last six years.
The key here: The judges finally looked under the hood at a government action involving national security. This does not happen often.
Why have judges historically been so timid? Mostly because of a belief that when the nation’s security is at stake, executive branch officials -- the president, the military, the Defense Department and others -- are better suited to make the necessary tough judgments.
Yet the record suggests that judges should at least examine the underlying evidence before ceding exceptional power to the executive branch. The 1953 Supreme Court decision in United States vs. Reynolds, which formally recognized a “state secrets privilege” for the first time, offers a particularly striking lesson.
In that case, U.S. Chief Justice Frederick Vinson acceded to the executive branch’s refusal to hand over an accident report about the crash of an Air Force B-29 and instructed trial judges that, in certain situations, they should accept the government’s national security claims without even examining the supporting evidence. It was an extraordinary act of faith on Vinson’s part, and it proved quite misguided 50 years later, when the B-29 accident report, finally declassified, revealed no state secrets but rather a stark chronicle of military negligence. (By then, however, the Bush administration was regularly invoking the state secrets privilege -- it has done so 39 times so far, according to the best available count -- to block litigation and withhold documents.)
A similar lesson rises from the landmark Pentagon Papers case in 1971 (United States vs. New York Times). There, Solicitor Gen. Erwin Griswold came before the Supreme Court with national security claims, seeking to suspend publication of leaked documents about the government’s involvement in the Vietnam War. Griswold, who had only scanned a summary memo concerning the Pentagon Papers, nonetheless warned the court that further publication would pose a “grave and immediate danger to the security of the United States.”
The court didn’t take the bait that time -- and once again it turned out there was nothing under the hood. Years later, in fact, in a February 1989 Washington Post Op-Ed essay, Griswold allowed that “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat.” What President Nixon and his advisors truly feared was losing credibility.
This is not a battle between liberals and conservatives. The Nixon administration pushed the Pentagon Papers case; the Truman administration argued the Reynolds case. Before Reynolds reached the Supreme Court, two very different federal judges -- one a crusty conservative Republican, the other a liberal Democrat -- both insisted that the executive branch could not unilaterally decide what to withhold, could not violate our country’s system of checks and balances. What those two judges -- U.S. District Judge William Kirkpatrick and U.S. Circuit Judge Albert Maris -- shared were courage, integrity and an ardent belief in the balance of powers, even during threatening times full of apocalyptic fears.
In an eloquent 3rd Circuit appellate opinion still read by law students today, Maris (the liberal Democrat) wrote: “To hold that the head of an executive department of the government ... may conclusively determine the government’s claim of privilege is to abdicate the judicial function.” Such an abdication seemed unimaginable to Maris: “The government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the government established.”
In recent decades, not many judges have taken a stand like Maris’. Since 1973, there has been a marked increase in claims involving the state secrets privilege, and in virtually all, the government has prevailed at the final legal stage. The retreat of the judiciary keeps intensifying -- since 1993, judges have required private in-chambers review of disputed documents in less than one-eighth of cases.
Yet Maris’ “independent judiciary” did show its face in the Parhat case on Monday, and it’s not the first time this month. Just 11 days earlier, on June 12, the Supreme Court provided a critical check on executive power when it ruled that about 270 detainees at Guantanamo have a constitutional right of habeas corpus -- a right to challenge their detention in federal courts. This was the third time since 2004 that the high court rejected President Bush’s claim that the war on terrorism gave him unchecked power to imprison enemy combatants.
Even in wartime, wrote Justice Sandra Day O’Connor in her historic June 2004 opinion, the Constitution “assuredly envisions a role for all three branches [of government] when individual liberties are at stake.”
The proposed State Secrets Protection Act, legislation now pending in Congress, could provide yet another important check -- it would, among other things, require judges to review the disputed documents when the government claims “national security,” rather than rely on its assurances.
Yet judges don’t need such legislation in order to maintain a balance of power. They need only to look at the evidence -- which last week told them that a fruit peddler has wrongly been kept incommunicado at Guantanamo for more than six years.