National security push-back
Judges should not give carte blanche to presidents, even in times of crisis.
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."
