Last year, DC District Judge Richard W. Roberts ordered the U.S. Trade Representative to disclose a classified document to a FOIA requester because, he said, the classification of the document was not properly supported. That ruling in Center for International Environmental Law v. Office of the U.S. Trade Representative was a startling judicial rebuff to executive classification authority of a sort that had not been seen in many years, and the government quickly appealed.
In oral arguments in the DC District Appeals Court last month, government attorneys all but declared that a court has no power to overrule an executive branch classification decision. The transcript of that February 21 hearing has just become available.
Judge Roberts’ “substitution of [his] judgment about likely harm to foreign relations [that could ensue from disclosure] fails to give the deference that’s due to the Executive in this sensitive area of foreign relations and national security, and is entirely inconsistent with this Court’s consistent case law over many decades that emphasizes the need for such deference,” argued H. Thomas Byron, III, on behalf of the U.S. Trade Representative.
Circuit Court Judge Brett Kavanaugh asked Mr. Byron whether there were any circumstances in which a court could reject a classification claim.
“When do you think a Court could ever disagree with the Executive’s determination in this kind of case?” Judge Kavanaugh asked.
Mr. Byron that if the agency’s declarations in support of classification are logical and plausible, then the agency is entitled to judicial deference.
“Isn’t that going to cover 100 percent of the cases?” Judge Kavanaugh asked.
“I certainly think, Judge Kavanaugh, that the Executive would not submit a declaration that was not logical or plausible,” Mr. Byron replied.
Then he went even further and suggested that the executive branch has exclusive constitutional authority over classification policy.
Judge Kavanaugh was inquiring how the government would respond to an argument made in an amicus brief filed by media organizations contending that Congress had mandated judicial review of classification when it amended the FOIA in 1974 in order to enable Courts to review executive classification judgments. Not only that, but when President Ford vetoed the measure, Congress overrode the veto.
Mr. Byron said, “The question is whether those changes [i.e. the 1974 amendments] altered the constitutionally required deference to the Executive in this area under the Separation of Powers Doctrine,” suggesting that the congressional override of President Ford’s veto was meaningless and without effect.
“That’s interesting,” said Judge Kavanaugh. “You don’t think Congress could put the courts in the position of second guessing” the executive?
“Well, when it comes to predictive judgments about harm to national security and foreign relations I think that’s a very difficult question,” Mr. Byron said.
“I agree,” Judge Kavanaugh replied.
Cogent arguments to the contrary were made by attorney Martin Wagner on behalf of the Center for International Environmental Law at the hearing and can be found in the transcript. An account of the hearing from the Reporters Committee on Freedom of the Press is here.